<PAGE>
As filed with the Securities and Exchange Commission on May 10, 1995
================================================================================
Registration No. 33-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________
ALCO CAPITAL RESOURCE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 23-2493042
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1738 BASS ROAD, MACON, GEORGIA 31210
(Address of principal executive offices)
912-471-2300
(Registrant's telephone number)
____________________
J. KENNETH CRONEY
VICE PRESIDENT & GENERAL COUNSEL
ALCO STANDARD CORPORATION
P.O. BOX 834
VALLEY FORGE, PA 19482
610-296-8000
(Name, address and telephone number of agent for service)
____________________
Copies to:
Robert E. Buckholz, Jr.
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
____________________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time as determined by market conditions 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, PLEASE CHECK THE FOLLOWING BOX. [X]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================
Proposed
Title of each Class Amount Proposed Maximum Amount of
of Securities to be Offering Price Aggregate Registration
to be Registered Registered Per Unit Offering Price(1) Fee
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities...... $1,000,000,000 100% $1,000,000,000 $344,828
========================================================================================
</TABLE>
(1) Estimated solely for the purpose of determining the registration fee; or if
any Debt Securities are issued (i) with a principal amount denominated in a
foreign currency, such principal amount as shall result in an aggregate
initial offering price equivalent to $1,000,000,000 at the time of initial
offering, or (ii) at an original issue discount, such greater principal
amount shall result in proceeds to the registrant of $1,000,000,000.
____________________
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
Pursuant to Rule 429 of the General Rules and Regulations under the
Securities Act of 1933, the Prospectus which is a part of this Registration
Statement is a combined Prospectus which also covers an aggregate of
$167,000,000 of similar, unissued securities registered under Registration
Statement No. 33-53779, as previously filed by the Registrant on Form S-3,
declared effective on June 29, 1994.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Information contained herein subject to completion or amendment. A registration
statement relating to these securities has been filed with the Securities and
Exchange Commission. These securities may not be sold nor may offers to buy be
accepted prior to the time the registration statement becomes effective. This
prospectus shall not constitute an offer to sell or the solicitation of an offer
to buy nor shall there be any sale of these securities in any State in which
such offer, solicitation, or sale would be unlawful prior to registration or
qualification under the securities laws of any such State.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
PRELIMINARY PROSPECTUS DATED MAY 10, 1995
SUBJECT TO COMPLETION
$1,167,000,000
ALCO CAPITAL RESOURCE, INC.
DEBT SECURITIES
____________________
Alco Capital Resource, Inc. (the "Company" or "ACR") may from time to time
offer its Debt Securities consisting of debentures, notes and/or other unsecured
evidences of indebtedness in one or more series at an aggregate initial offering
price not to exceed $1,167,000,000. The terms of the Debt Securities,
including, where applicable, the specific designation, aggregate principal
amount, denominations, which may include securities denominated in U.S. dollars,
in any other currency or in composite currencies such as the European Currency
Unit, date or dates on which principal is payable, interest rate or rates (which
may be fixed or variable) and time of payment of interest, if any, terms for
redemption at the option of the Company, terms for any repayment of principal
amount at the option of the holder (which option may be conditional), terms for
any sinking fund payments, the initial public offering price, the names of any
underwriters or agents, the principal amounts, if any, to be purchased by
underwriters and the compensation of such underwriters or agents and the other
terms in connection with the offering and sale of the Debt Securities in respect
of which this Prospectus is being delivered, are set forth in the accompanying
Prospectus Supplement. The Debt Securities are solely the obligations of the
Company and are not guaranteed by the Company's parent corporation, Alco
Standard Corporation. This Prospectus may not be used to consummate the sale of
Debt Securities unless accompanied by a Prospectus Supplement.
The Company may sell Debt Securities to or through one or more underwriters
for public offering and sale by them or may sell Debt Securities to investors
directly or through agents. See "Plan of Distribution." Such underwriters or
agents may include one or more of Lehman Brothers Inc., Chase Securities, Inc.,
Goldman, Sachs & Co. and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated or a group represented by one or more of such firms or by one
or more other firms.
____________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
____________________
The date of this Prospectus is _________, 1995.
<PAGE>
AVAILABLE INFORMATION
The Company and Alco Standard Corporation ("Alco Standard"), which owns 100%
of the outstanding common stock of the Company, are subject to the informational
requirements of the Securities Exchange Act of 1934, as amended (the "1934
Act"), and in accordance therewith file reports, proxy material (Alco Standard
only) and other information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy material and other information can be
inspected and copied at the offices of the Commission at 450 Fifth Street, N.W.,
Washington, D.C., as well as Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois, and 7 World Trade Center, Suite 1300, New York, New
York, and copies can be obtained by mail from the Public Reference Section of
the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. Reports, proxy material and other information concerning Alco Standard
can also be inspected at the offices of the New York, Philadelphia and Chicago
Stock Exchanges.
The Company is not required to deliver an annual report to its security
holders pursuant to Section 14 of the 1934 Act, nor does it currently intend to
deliver to holders of its debt securities any other report that contains
financial information relating to the Company that has been examined and
reported upon, with an opinion expressed by, an independent accountant. Such
information, however, is contained in the Company's Annual Report on Form 10-K
and in other periodic reports filed with the Securities and Exchange Commission
that the Company will provide without charge (without exhibits), upon request,
to any such security holder.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended September 30,
1994, the Company's Quarterly Report on Form 10-Q for the period ended December
31, 1994 and the Company's Quarterly Report on Form 10-Q for the period ended
March 31, 1995 filed with the Commission pursuant to the 1934 Act are hereby
incorporated in this Prospectus by reference.
All other documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the 1934 Act after the date of this Prospectus and prior to the
termination of the offering of the Debt Securities shall be deemed to be
incorporated by reference in this Prospectus. This Prospectus does not contain
all information set forth in the Registration Statement and Exhibits thereto
which the Company has filed with the Commission and to which reference is hereby
made.
The Company hereby undertakes to provide without charge to each person to whom
a copy of this Prospectus has been delivered, upon the written or oral request
of such person, a copy of any or all of the documents referred to above which
have been or may be incorporated in this Prospectus by reference, other than
exhibits to such documents. Requests for such copies should be directed to
Corporate Affairs Department, Alco Standard Corporation, P.O. Box 834, Valley
Forge, PA, 19482; telephone number 610-296-8000.
THE COMPANY
The Company's principal executive offices are located at 1738 Bass Road,
Macon, Georgia 31210; telephone number: 912-471-2300.
2
<PAGE>
RELATIONSHIP WITH ALCO STANDARD CORPORATION
The Company, as a captive finance subsidiary of Alco Standard, derives its
customer base from the business sourced by its affiliates within Alco Standard
(the AOP dealers). There are several agreements and programs between the Company
and Alco Standard, which are described below.
Support Agreements
The Company and Alco Standard are parties to a Maintenance Agreement, dated
August 15, 1991 (the "1991 Maintenance Agreement"), and an Operating Agreement,
dated August 15, 1991 (the "1991 Operating Agreement" and together with the 1991
Maintenance Agreement, the "1991 Maintenance and Operating Agreements"), which
are further described below. The Company has agreed with its lenders pursuant to
loan agreements entered into before June 1, 1994 that it will not amend or
terminate the 1991 Maintenance and Operating Agreements without each such
lender's consent until all outstanding debt under such loan agreements shall
have been paid.
The Company and Alco Standard entered into a support agreement (the "1994
Support Agreement") dated as of June 1, 1994. The Company has covenanted with
noteholders and other lenders after June 1, 1994 (and intends to covenant with
future noteholders and other lenders) that it will not amend the 1994 Support
Agreement except under certain circumstances (see "1994 Support Agreement"
below).
The 1991 Maintenance and Operating Agreements
The terms of the 1991 Maintenance Agreement provide that Alco Standard will
make a cash payment to the Company (or an investment in the form of equity or
subordinated notes) as needed in amounts sufficient to meet a specified minimum
fixed charge coverage ratio and a maximum debt-to-equity ratio. The fixed charge
coverage ratio requirement is defined as earnings before fixed charges
(primarily interest) and must be at least 1.3 times fixed charges. The Company
has satisfied this requirement independently (without requiring payment or an
investment from Alco Standard) for the last three fiscal years. The Company's
debt-to-equity ratio is limited to 6 to 1 according to the terms of the 1991
Maintenance Agreement. In order to comply with this requirement, the Company
received capital contributions from Alco Standard of $7,000,000 in the first six
months of fiscal 1995, $8,300,000 in 1994, $2,615,000 in 1993 and none in 1992.
The Company must also maintain minimum tangible net worth of not less than
$1.00.
The 1991 Operating Agreement requires the AOP dealers to repurchase all
defaulted lease contracts. A default is defined in the 1991 Operating Agreement
as any receivable which is past due for 120 days or is otherwise reasonably
declared uncollectible by the Company. The repurchase amount is defined as the
net book value of a lease on the default date.
The 1991 Maintenance and Operating Agreements provide for modification or
amendment with both parties' consent and provide for cancellation by either
party upon 90 days written notice.
The 1994 Support Agreement
The 1994 Support Agreement between the Company and Alco Standard provides that
Alco Standard will make a cash payment to the Company (or an investment in the
form of equity or subordinated notes) as needed
3
<PAGE>
to comply with two requirements: i) that the Company will maintain a pre-tax
interest coverage ratio (income before interest expense and taxes divided by
interest expense) so that the Company's pre-tax income plus interest expense
(together with cash payments from Alco Standard) will not be less than 1.25
times interest expense, and ii) that the Company will maintain a minimum
tangible net worth of $1.00. The 1994 Support Agreement further provides that
Alco Standard may not assign the 1994 Support Agreement unless: (a) all the
outstanding debt of the Company is repaid or (ii) both Moody's Investors
Service, Inc. and Standard & Poor's Ratings Group confirm in writing prior to
the effectiveness of any such assignment that the Company's debt rating would
not be downgraded as a result of any such assignment.
Unlike the 1991 Operating Agreement, the 1994 Support Agreement does not
contain a requirement that the AOP dealers repurchase all defaulted lease
contracts. The 1994 Support Agreement does not include the repurchase
requirement because the Company and Alco Standard wish to preserve the
flexibility, on a prospective basis, to allow the credit risk for defaulted
contracts to remain with the Company. In such event, the credit decision and
reserves for defaulted contracts would become the responsibility of the Company.
If the Company were responsible for the credit risk and costs associated with
defaulted contracts, the Company would increase its current lease rates in order
to offset these increased costs. Consequently, the Company believes that the
impact of any future shift of the credit risk from the AOP dealers to the
Company would not be material to the Company's future results of operations. The
Company's (and Alco Standard's) present intention, however, is to continue the
repurchase arrangement with the AOP dealers as currently in effect.
The Company provides in the Indenture or other documentation governing
debt incurred after June 1, 1994 that the 1994 Support Agreement cannot be
amended or terminated without the consent of noteholders or other lenders unless
either i) all the outstanding debt of the Company is repaid, or ii) both Moody's
Investor Service and Standard & Poor's Ratings Group confirm in writing prior to
the effectiveness of any such amendment or termination that the Company's debt
rating would not be downgraded as a result of such amendment or termination.
Cash Management Program
The Company participates in Alco Standard's domestic Cash Management program.
Under this program, the Company has an account with Alco Standard through which
cash in excess of current operating requirements is temporarily placed on
deposit. Similarly, amounts are periodically borrowed from Alco Standard.
Interest is paid (or charged) by Alco Standard on these amounts. The Company
was in a net deposit position with Alco Standard for the first six months of
fiscal year 1995, earning net interest income totalling $439,000. The Company
was a net borrower in 1994, 1993, and 1992 incurring net interest costs of
$496,000, $579,000 and $1,090,000, respectively, under this program.
Management Fee
The Company is charged a management fee by Alco Standard to cover certain
corporate overhead expenses. These charges are included as general and
administrative expenses in the Company's financial statements and amounted to
$276,000 in the first six months of fiscal year 1995, $396,000 in 1994, $360,000
in 1993 and $192,000 in 1992.
4
<PAGE>
Federal Income Tax Allocation Agreement
Alco Standard and the Company participate in a Federal Income Tax Allocation
Agreement dated June 30, 1989, in which the Company consents to the filing of
consolidated federal income tax returns with Alco Standard. Alco Standard agrees
to collect from or pay to the Company its allocated share of any consolidated
federal income tax liability or refund applicable to any period for which the
Company is included in Alco Standard's consolidated federal income tax return.
Interest on Income Tax Deferrals
The Company provides substantial tax benefits to Alco Standard through the use
of the installment sales method on equipment financed through the Company. For
the first six months of fiscal year 1995, the Company earned interest income on
deferred taxes totalling $2,796,000. For fiscal year 1995, the interest rate
upon which these payments are based was changed from the 6% rate in effect
during fiscal years 1993 and 1994 to a rate equal to the Company's weighted
average outside borrowing rate of interest. The rate of interest for the first
six months of fiscal year 1995 averaged 6.4%. At the end of the first half
of fiscal year 1995, deferred taxes on the AOP dealers books upon which these
payments are based totalled $90,500,000. Taxes deferred by Alco Standard due to
this tax treatment totalled a cumulative amount of approximately $96,000,000 at
the end of fiscal 1994. Alco Standard pays the Company interest on the portion
of these tax deferrals (approximately $76,000,000 at the end of fiscal 1994)
which arise from tax deferrals on intercompany sales. In fiscal 1994 and 1993,
interest was earned by the Company at a rate of 6% and totalled $3,753,000 and
$2,926,000, respectively. In fiscal 1992, the interest earned amounted to
$3,050,000, computed at a 9% rate.
Lease Bonus Program
In January 1992, a lease bonus subsidy program was initiated which provides
incentives to AOP dealers when AOP customers lease equipment from the Company.
The payments under this program can be reduced or eliminated by the Company at
any time. In fiscal 1992, the program was nine months in duration, and
$3,300,000 in bonus payments were made to the AOP dealers for leases of certain
higher industry segment equipment. Fiscal 1993 bonus payments were calculated on
the basis of the AOP dealer's increase in the percentage of equipment sales
leased through the Company, and totalled $5,900,000. Fiscal year 1994 lease
bonus payments are calculated on the same basis as the 1993 payments; the lease
bonus payments were $8,800,000 for fiscal 1994. In the first six months of
fiscal 1995, the Company paid out $4,100,000 in lease bonus subsidy payments to
AOP dealers.
ALCO CAPITAL RESOURCE, INC.
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Fiscal Year Ended September 30,
Six Months Ended -------------------------------
March 31, 1995 1994 1993 1992 1991 1990
-------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges... 1.9 2.0 1.7 1.5 1.6 1.5
</TABLE>
5
<PAGE>
ALCO STANDARD CORPORATION AND SUBSIDIARIES
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Fiscal Year Ended September 30,
Six Months Ended -------------------------------
March 31, 1995 1994 1993 1992 1991 1990
-------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges... 3.6 3.7 1.3* 3.5 2.8 2.7
</TABLE>
- --------
* Including the effect of a pre-tax restructuring charge in the amount of $175
million for fiscal 1993, further described in Alco Standard Corporation's 1993
Annual Report on Form 10-K (as amended by Form 10-K/A), as filed with the
Securities and Exchange Commission.
ALCO STANDARD CORPORATION AND SUBSIDIARIES
RATIO OF EARNINGS TO FIXED CHARGES
(EXCLUDING CAPTIVE FINANCE SUBSIDIARIES)
<TABLE>
<CAPTION>
Fiscal Year Ended September 30,
Six Months Ended --------------------------------
March 31, 1995 1994 1993 1992 1991 1990
-------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges... 4.4 4.4 1.4* 4.2 3.3 3.0
</TABLE>
- --------
* Including the effect of a pre-tax restructuring charge in the amount of $175
million for fiscal 1993, further described in Alco Standard Corporation's 1993
Annual Report on Form 10-K (as amended by Form 10-K/A), as filed with the
Securities and Exchange Commission.
For purposes of computing the ratio of earnings to fixed charges, earnings
represent pretax income from continuing operations plus fixed charges (net of
capitalized interest). Fixed charges represent interest (whether expensed or
capitalized) and one-third (the proportion deemed representative of the interest
factor) of rents of continuing operations.
USE OF PROCEEDS
The net proceeds from the sale of the Debt Securities offered hereby will be
used by the Company for the financing of future sales and leasing transactions
with AOP customers, and for other corporate purposes. The Company expects to
incur additional indebtedness in connection with its financing operations.
However, the amount, timing and precise nature of such indebtedness have not yet
been determined and will depend upon the volume of the Company's business, the
availability of credit and general market conditions.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth the material terms and provisions of the
Debt Securities to which any Prospectus Supplement may relate. The particular
terms of the Debt Securities offered by any Prospectus Supplement and the
extent, if any, to which the general provisions described below may apply to the
Debt Securities so offered will be described in the Prospectus Supplement
relating to such Debt Securities.
Offered Debt Securities (as defined below) are to be issued under an Indenture
(the "Indenture"), dated as of ___________, 1995, between the Company and
Chemical Bank, as Trustee. The statements under this caption relating to the
Debt Securities and the Indenture are summaries and do not purport to be
complete. Such summaries make use of terms defined in the Indenture and are
qualified in their entirety by express reference to the Indenture and the cited
provisions thereof, a copy of which is filed as an exhibit to the Registration
Statement.
6
<PAGE>
General
The Debt Securities will be unsecured obligations of the Company. The
Indenture does not limit the aggregate principal amount of Debt Securities which
may be issued thereunder and provides that Debt Securities may be issued
thereunder from time to time in one or more series.
Reference is made to the Prospectus Supplement relating to the particular Debt
Securities offered thereby (the "Offered Debt Securities") for the following
terms of the Offered Debt Securities: (1) the title of the Offered Debt
Securities; (2) any limit on the aggregate principal amount of the Offered Debt
Securities; (3) the person to whom any interest shall be payable, if other than
the person in whose name the Offered Debt Security is registered on the regular
record date for such interest; (4) the date or dates on which the principal of
the Offered Debt Securities will be payable; (5) the rate or rates per annum at
which the Offered Debt Securities will bear interest, if any, or the formula
pursuant to which such rate or rates shall be determined, and the date or dates
from which such interest will accrue; (6) the dates on which such interest, if
any, will be payable and the regular record dates for such interest payment
dates; (7) the place or places where principal of (and premium, if any) and
interest on Offered Debt Securities shall be payable; (8) any mandatory or
optional sinking fund or analogous provisions; (9) if applicable, the price at
which, the periods within which, and the terms and conditions upon which the
Offered Debt Securities may, pursuant to any optional or mandatory redemption
provisions, be redeemed at the option of the Company; (10) if applicable, the
terms and conditions upon which the Offered Debt Securities may be repayable
prior to final maturity at the option of the holder thereof (which option may be
conditional); (11) the portion of the principal amount of the Offered Debt
Securities, if other than the principal amount thereof, payable upon
acceleration of maturity thereof; (12) the currency or currencies, including
composite currencies, in which principal of (and premium, if any) and interest
may be payable (which may be other than those in which the Offered Debt
Securities are stated to be payable); (13) any index pursuant to which the
amount of payments of principal of (and premium, if any) or interest may be
determined; (14) whether all or any part of the Offered Debt Securities will be
issued in the form of a Global Security or Securities and, if so, the Depositary
for, and other terms relating to, such Global Security or Securities; and (15)
any other terms of the Offered Debt Securities. (Section 301)
Unless otherwise indicated in the Prospectus Supplement relating thereto, the
Offered Debt Securities are to be issued as registered securities without
coupons in denominations of $1,000 or any integral multiple of $1,000. (Section
302) No service charge will be made for any transfer or exchange of such Offered
Debt Securities, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
(Section 305)
The applicable Prospectus Supplement will describe any special United States
federal tax consequences and any other special considerations with respect to
the Offered Debt Securities.
Certain Restrictions
1994 Support Agreement. The Indenture provides that the Company (1) will
observe and perform in all material respects all covenants or agreements of the
Company contained in the 1994 Support Agreement; (2) to the extent possible,
will cause Alco Standard to observe and perform in all material respects all
covenants or agreements of Alco Standard contained in the 1994 Support
Agreement; and (3) will not waive compliance under, amend in any material
respect or terminate the 1994 Support Agreement; provided, however, that the
1994 Support Agreement may be amended or terminated if either (i) all the
outstanding debt of the Company is repaid or (ii) both Moody's Investors
Service, Inc. and Standard & Poors Ratings Group confirm in writing prior to the
effectiveness of any such amendment or termination that the Company's debt
rating would not be downgraded as a result of any such amendment or termination.
(Section 1004)
Restrictions on Liens and Encumbrances. The Company will not create, assume
or guarantee any Secured
7
<PAGE>
Debt (as defined below) without making effective provision for securing the Debt
Securities (and, if the Company shall so determine, any other indebtedness of or
guaranteed by the Company), equally and ratably with such Secured Debt. The term
"Secured Debt" shall mean indebtedness for money borrowed which is secured by a
mortgage, pledge, lien, security interest or encumbrance on any property of any
character of the Company. This covenant does not apply to debt secured by (i)
certain mortgages, pledges, liens, security interests or encumbrances in
connection with the acquisition, construction or improvement of any fixed asset
or other physical or real property by the Company, (ii) mortgages, pledges,
liens, security interests or encumbrances on property existing at the time of
acquisition thereof, whether or not assumed by the Company, (iii) mortgages,
pledges, liens, security interests or encumbrances on property of a corporation
existing at the time such corporation is merged into or consolidated with the
Company or at the time of sale, lease or other disposition of the properties of
a corporation or firm as an entirety or substantially as an entirety to the
Company, (iv) mortgages, including mortgages, pledges, liens, security interests
or encumbrances, on property of the Company in favor of the United States of
America, any state thereof, or any other country, or any agency, instrumentality
or political subdivision thereof, to secure certain payments pursuant to any
contract or statute or to secure indebtedness incurred for the purpose of
financing all or any part of the purchase price or the cost of construction or
improvement of the property subject to such mortgages, (v) any extension,
renewal or replacement (or successive extensions, renewals or replacements), in
whole or in part, of any mortgage, pledge, lien or encumbrance referred to in
the foregoing clauses (i) to (iv), inclusive or (vi) any mortgage, pledge, lien,
security interest, or encumbrance securing indebtedness owing by the Company to
one or more wholly owned Subsidiaries. Notwithstanding the above, the Company
may, without securing the Debt Securities, create, assume or guarantee Secured
Debt which would otherwise be subject to the foregoing restrictions, provided
that, after giving effect thereto, the aggregate amount of all Secured Debt then
outstanding (not including Secured Debt permitted under the foregoing
exceptions) at such time does not exceed 5% of the Consolidated Net Tangible
Assets. (Sections 101 and 1005)
The Indenture provides that no consolidation or merger of the Company and no
sale, conveyance or lease of the property of the Company, substantially as an
entirety, shall be made with or to another corporation if as a result thereof
any properties or assets of the Company would become subject to a lien or
mortgage not permitted by the terms of the Indenture unless effective provision
shall be made to secure the Debt Securities equally and ratably with (or prior
to) all indebtedness thereby secured. (Section 801)
The term "Consolidated Net Tangible Assets" shall mean as of any particular
time the aggregate amount of assets after deducting therefrom (a) all current
liabilities (excluding any such liability that by its terms is extendable or
renewable at the option of the obligor thereon to a time more than 12 months
after the time as of which the amount thereof is being computed) and (b) all
goodwill, excess of cost over assets acquired, patents, copyrights, trademarks,
trade names, unamortized debt discount and expense and other like intangibles,
all as shown in the most recent consolidated financial statements of the Company
and its Subsidiaries prepared in accordance with generally accepted accounting
principles. The term "Subsidiary" with respect to any Person means any
corporation of which more than 50% of the outstanding stock having ordinary
voting power to elect directors is owned directly or indirectly by such Person
or by one or more other corporations more than 50% of such stock of which is
similarly owned or controlled. (Section 101)
The Trustee
The Indenture contains certain limitations on the right of the Trustee, as a
creditor of the Company, to obtain payment of claims in certain cases, or to
realize on certain property received in respect of any such claim as security or
otherwise. (Section 613) In addition, the Trustee may be deemed to have a
conflicting interest and may be required to resign as Trustee if at the time of
a default under the Indenture it is a creditor of the
8
<PAGE>
Company.
Chemical Bank, the Trustee under the Indenture, maintains a banking
relationship with the Company and Alco Standard.
Events of Default and Notice Thereof
The following events are defined in the Indenture as "Events of Default" with
respect to Debt Securities of any series: (a) failure to pay principal of or
premium, if any, on any Debt Security of that series when due; (b) failure to
pay any interest on any Debt Security of that series when due, continued for 30
days; (c) failure to deposit any sinking fund payment, when due, in respect of
any Debt Security of that series; (d) default in the performance, or breach, of
any term or provision of the covenant described under "Certain Restrictions--
1994 Support Agreement;" (e) failure to perform any other covenant of the
Company in the Indenture (other than a covenant included in the Indenture solely
for the benefit of a series of Debt Securities other than that series),
continued for 60 days after written notice given to the Company by the Trustee
or the holders of at least 10% in the principal amount of the Debt Securities
outstanding and affected thereby; (f) default in payment of principal in excess
of $15,000,000 or acceleration of any indebtedness for money borrowed in excess
of $15,000,000 by the Company (including a default with respect to Debt
Securities of any series other than that series), if such indebtedness has not
been discharged or become no longer due and payable or such acceleration has not
been rescinded or annulled, within 10 days after written notice given to the
Company by the Trustee or the holders of at least 10% in principal amount of the
outstanding Debt Securities of such series; (g) certain events in bankruptcy,
insolvency or reorganization of the Company; (h) certain events in bankruptcy,
insolvency or reorganization of Alco Standard or one of its subsidiaries if such
event affects any significant part of the assets of the Company or any of its
subsidiaries; and (i) any other Event of Default provided with respect to Debt
Securities of such series. (Section 501)
If an Event of Default with respect to Debt Securities of any series at the
time outstanding shall occur and be continuing, either the Trustee or the
holders of at least 25% in principal amount of the outstanding Debt Securities
of that series may declare the principal amount (or, if the Debt Securities of
that series are Original Issue Discount Securities (as defined in the
Indenture), such portion of the principal amount as may be specified in the
terms of that series) of all Debt Securities to be due and payable immediately;
provided, however, that under certain circumstances the holders of a majority in
aggregate principal amount or outstanding Debt Securities of that series may
rescind and annul such declaration and its consequences. (Section 502)
Reference is made to the Prospectus Supplement relating to any series of
Offered Debt Securities which are Original Issue Discount Securities for the
particular provisions relating to the principal amount of such Original Issue
Discount Securities due on acceleration upon the occurrence of an Event of
Default and the continuation thereof.
The Indenture provides that the Trustee, within 90 days after the occurrence
of a default with respect to any series of Debt Securities, shall give to the
holders of Debt Securities of that series notice of all uncured defaults known
to it (the term default to mean the events specified above without grace
periods), provided that, except in the case of default in the payment of
principal of (or premium, if any) or interest, if any, on any Debt Security, the
Trustee shall be protected in withholding such notice if it in good faith
determines that the withholding of such notice is in the interest of the holders
of Debt Securities. (Section 602)
The Company will be required to furnish to the Trustee annually a statement by
certain officers of the Company to the effect that to the best of their
knowledge the Company is not in default in the fulfillment of any of its
obligations under the Indenture or, if there has been a default in the
fulfillment of any such obligation,
9
<PAGE>
specifying each such default. (Section 1006)
The holders of a majority in principal amount of the outstanding Debt
Securities of any series affected will have the right, subject to certain
limitations, to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, exercising any trust or power conferred
on the Trustee with respect to the Debt Securities of such series, and to waive
certain defaults. (Sections 512 and 513)
Under the Indenture, record dates may be set for Acts of the holders with
respect to Events of Default, declaring an acceleration, or rescission and
annulment thereof, the direction of the time, method and place of conducting any
proceeding for any remedy available to the Trustee, exercising any trust or
power conferred on the Trustee, or waiving any default. (Sections 501, 502, 512
and 513)
The Indenture provides that in determining whether the holders of the
requisite principal amount of the outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver thereunder
(i) the principal amount of an Original Issue Discount Security that shall be
deemed to be outstanding shall be the amount of the principal thereof that would
be due and payable as of the date of such determination upon acceleration of the
maturity thereof, and (ii) the principal amount of a Debt Security denominated
in a foreign currency or a composite currency shall be the U.S. dollar
equivalent, determined on the basis of the rate of exchange on the business day
immediately preceding the date of original issuance of such Debt Security by the
Company in good faith, of the principal amount of such Debt Security (or, in the
case of an Original Issue Discount Security, the U.S. dollar equivalent,
determined based on the rate of exchange prevailing on the business day
immediately preceding the date of original issuance of such Debt Security, of
the amount determined as provided in (i) above). (Section 101)
The Indenture provides that in case an Event of Default shall occur and be
continuing, the Trustee shall exercise such of its rights and powers under the
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs. (Section 601) Subject to such provisions, the Trustee will be under
no obligation to exercise any of its rights or powers under the Indenture at the
request of any of the holders of Debt Securities unless they 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.
(Section 603)
The covenants contained in the Indenture and the Debt Securities would not
necessarily afford Holders of the Debt Securities protection in the event of a
highly leveraged or other transaction involving Alco that may adversely affect
Holders.
Modification of The Indenture
Modifications and amendments of the Indenture may be made by the Company and
the Trustee, with the consent of the holders of not less than 66-2/3% in
aggregate principal amount of each series of the outstanding Debt Securities
issued under the Indenture which are affected by the modification or amendment,
provided that no such modification or amendment may, without a consent of each
holder of such Debt Securities affected thereby: (1) change the stated maturity
date of the principal of (or premium, if any) or any installment of interest, if
any, on any such Debt Security; (2) reduce the principal amount of (or premium,
if any) or the interest, if any, on any such Debt Security or the principal
amount due upon acceleration of an Original Issue Discount Security; (3) change
the place or currency of payment of principal of (or premium, if any) or
interest, if any, on any such Debt Security; (4) impair the right to institute
suit for the enforcement of any such payment on or with respect to any such Debt
Security; (5) reduce the above-stated percentage of holders of Debt Securities
necessary to modify or amend the Indenture; or (6) modify the foregoing
requirements or reduce the percentage of outstanding
10
<PAGE>
Debt Securities necessary to waive compliance with certain provisions of the
Indenture or for waiver of certain defaults. A record date may be set for any
Act of the holders with respect to consenting to any amendment. (Section 902)
PLAN OF DISTRIBUTION
The Company may sell Debt Securities to or through one or more underwriters or
dealers and also may sell Debt Securities to other investors directly or through
agents. Any such underwriter or agent involved in the offer and sale of the Debt
Securities will be named in the Prospectus Supplement. The underwriters or
agents may include one or more of Lehman Brothers Inc., Chase Securities, Inc.,
Goldman, Sachs & Co. and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated or a group of underwriters represented by one or more of such
firms or may be one or more other firms.
Underwriters or agents may offer and sell the Debt Securities at a fixed price
or prices, which may be changed, or from time to time at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices. In connection with the sale of the Debt
Securities, underwriters or agents may be deemed to have received compensation
from the Company in the form of underwriting discounts or commissions and may
also receive commissions from purchasers of the Debt Securities for whom they
may act as agent. Underwriters or agents may sell the Debt Securities to or
through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters or commissions from
the purchasers for whom they may act as agent.
The Company does not expect to list the Debt Securities. The Debt Securities,
when first issued, will have no established trading market. Any underwriters or
agents to or through whom Debt Securities are sold by the Company for public
offering and sale may make a market in such Debt Securities, but such
underwriters or agents will not be obligated to do so and may discontinue any
market making at any time without notice. No assurance can be given as to the
liquidity of the trading market for any Debt Securities.
Any underwriters or agents participating in the distribution of the Debt
Securities may be deemed to be underwriters, and any discounts and commissions
received by them and any profit realized by them on resale of the Debt
Securities may be deemed to be underwriting discounts and commissions, under the
Securities Act of 1933, as amended. Underwriters or agents may be entitled,
under agreements entered into with the Company, to indemnification against or
contribution toward certain civil liabilities, including certain liabilities
under the Securities Act of 1933, as amended.
Certain of the underwriters or agents and their associates may be customers
of, engage in transactions with and perform services for, the Company in the
ordinary course of business.
VALIDITY OF DEBT SECURITIES
The validity of the Debt Securities will be passed upon for the Company by J.
Kenneth Croney, General Counsel of Alco Standard, and for any underwriters or
agents by Sullivan & Cromwell, 125 Broad Street, New York, New York 10004. As of
March 31, 1995, Mr. Croney beneficially owned 32,921 shares of Common Stock of
Alco Standard, including 18,000 shares over which he has the right to acquire
beneficial ownership through the exercise of stock options granted under Alco
Standard's 1981 Stock Option Plan or 1986 Stock Option Plan. Sullivan & Cromwell
from time to time performs legal services for Alco Standard.
11
<PAGE>
EXPERTS
The financial statements of Alco Capital Resource, Inc. appearing in Alco
Capital Resource, Inc.'s Annual Report on Form 10-K for the fiscal year ended
September 30, 1994 have been audited by Ernst & Young LLP, independent auditors,
as set forth in their report thereon included therein and incorporated herein by
reference. Such financial statements are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
12
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION:*
The following is an itemized statement of expenses of the Company in connection
with the issue of the Debt Securities.
<TABLE>
<CAPTION>
<S> <C>
Registration fee.................................... $344,828
Rating Agency fees.................................. 115,000
Fees and expenses of Trustee........................ 13,000
Printing expenses................................... 60,000
Accountants' fees and expenses...................... 50,000
Counsel fees and expenses........................... 60,000
Blue Sky qualification and legal investment survey.. 30,000
Miscellaneous....................................... 10,172
--------
Total.............................................. $683,000
========
</TABLE>
_____________________
* All amounts are estimates except for the registration fee.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by Delaware law, under which the Company is incorporated, the
Company's Articles of Incorporation and By-Laws provide that officers and
directors of the Company shall be indemnified for expenses (including attorneys'
fees) reasonably incurred in the successful defense of a suit or proceeding
brought by reason of such persons being officers or directors of the Company.
If unsuccessful in defense of a third-party civil suit or a criminal suit, or
if such a suit is settled, such a person shall be indemnified under the By-Laws
against both (1) expenses (including attorneys' fees) and (2) judgments, fines
and amounts paid in settlement if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
Company, and with respect to any criminal action, if he had no reasonable cause
to believe his conduct was unlawful.
If unsuccessful in defense of a suit brought by or in the right of the
Company, or if such suit is settled, such a person shall be indemnified under
such law only against expenses (including attorneys' fees) incurred in the
defense or settlement of such suit if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
Company except that if such a person is adjudged to be liable in such a suit for
negligence or misconduct in the performance of his duty to the Company, he
cannot be indemnified unless specific court approval is obtained.
The Company has purchased liability insurance policies covering its directors
and officers to provide protection where the Company cannot legally indemnify a
director or officer and where a claim arises under the Employee Retirement
Income Security Act of 1974 against a director or officer based upon an alleged
breach of fiduciary duty or other wrongful act.
II-1
<PAGE>
ITEM 16. EXHIBITS.
1 -- Form of Distribution Agreement.
4 -- Form of Indenture between the Registrant and Chemical
Bank, as Trustee.
5 -- Opinion of J. Kenneth Croney as to legality of the Debt
Securities being registered.
12.1 -- Alco Capital Resource, Inc. Statement Setting Forth
Computation of Ratio of Earnings to Fixed Charges.
12.2 -- Alco Standard Corporation and Subsidiaries Statement
Setting Forth Computation of Ratio of Earnings to Fixed
Charges.
12.3 -- Alco Standard Corporation and Subsidiaries Statement
Setting Forth Computation of Ratio of Earnings to Fixed
Charges
(Excluding Captive Finance Subsidiaries).
23.1 -- Consent of J. Kenneth Croney (included in Exhibit 5).
23.2 -- Consent of Ernst & Young LLP.
24.1 -- Power of Attorney of Richard P. Maier.
24.2 -- Power of Attorney of Robert M. Kearns.
24.3 -- Power of Attorney of Kurt E. Dinkelacker.
24.4 -- Certification of Resolutions of the Board of Directors
25 -- Form T-1 Statement of Eligibility under the Trust
Indenture Act of 1939 of Chemical Bank.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes the following (as set forth in
paragraphs (1) through (7) below):
(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 the registration statement;
and
(iii) To include any material information, with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
section 13 or 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 therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(4) For purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to section 13(a) or
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 the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
II-2
<PAGE>
(5) 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.
(6) 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 registrant 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.
(7) 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 in Item 15 hereof, or
otherwise, (but that term shall not include the insurance policies referred to
in Item 15) the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act of 1933 and is therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Valley Forge, Pennsylvania, on the 10th day of May, 1995.
ALCO CAPITAL RESOURCE, INC.
By: /s/ Robert M. Kearns
---------------------
Robert M. Kearns
Vice President
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE CAPACITIES
INDICATED ON THE 10TH DAY OF MAY, 1995.
<TABLE>
<CAPTION>
Signature Title
- --------- -----
<S> <C>
*
- ------------------------- President
Richard P. Maier (Principal Executive Officer)
*
- ------------------------- Vice President
Robert M. Kearns (Principal Accounting and Financial Officer)
*
- ------------------------- Director
Kurt E. Dinkelacker
*By: /s/ Robert M. Kearns
------------------------
Robert M. Kearns
Attorney-in-fact
</TABLE>
II-4
<PAGE>
EXHIBITS
Sequentially
Exhibit Numbered
Number Exhibit Page
1 -- Form of Distribution Agreement.
4 -- Form of Indenture between the Registrant and Chemical
Bank, as Trustee.
5 -- Opinion of J. Kenneth Croney as to legality of the Debt
Securities being registered.
12.1 -- Alco Capital Resource, Inc. Statement Setting Forth
Computation of Ratio of Earnings to Fixed Charges.
12.2 -- Alco Standard Corporation and Subsidiaries Statement
Setting Forth Computation of Ratio of Earnings to Fixed
Charges.
12.3 -- Alco Standard Corporation and Subsidiaries Statement
Setting Forth Computation of Ratio of Earnings to Fixed
Charges
(Excluding Captive Finance Subsidiaries).
23.1 -- Consent of J. Kenneth Croney (included in Exhibit 5).
23.2 -- Consent of Ernst & Young LLP.
24.1 -- Power of Attorney of Richard P. Maier.
24.2 -- Power of Attorney of Robert M. Kearns.
24.3 -- Power of Attorney of Kurt E. Dinkelacker.
24.4 -- Certification of Resolutions of the Board of Directors
25 -- Form T-1 Statement of Eligibility under the Trust
Indenture Act of 1939 of Chemical Bank.
<PAGE>
EXHIBIT 1
S&C Draft of May 9, 1995
U.S. $[1,167,000,000]
ALCO CAPITAL RESOURCE, INC.
MEDIUM-TERM NOTES, SERIES B
DISTRIBUTION AGREEMENT
______, 1995
Lehman Brothers
Lehman Brothers Inc.
3 World Financial Center, 12th Floor
New York, New York 10285-1200
Chase Securities, Inc.
One Chase Manhattan Plaza
New York, New York 10081
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281
Dear Sirs:
Alco Capital Resource, Inc., a Delaware corporation (the "Company"),
confirms its agreement with each of you (individually, an "Agent" and
collectively, the "Agents") (which terms shall, for all purposes of this
Agreement, include Lehman Government Securities Inc., an affiliate of Lehman
Brothers Inc.) with respect to the issuance and sale by the Company of up to an
aggregate of [$1,167,000,000] in gross proceeds of its Medium-Term Notes, Series
B (the "Notes"). The Notes are to be issued from time to time pursuant to an
indenture, dated as of _______, 1995 (as it may be supplemented or amended from
time to time, the "Indenture"), between the Company and Chemical Bank, as
trustee (the "Trustee").
The Notes shall have the maturity ranges, applicable interest rates or
interest rate formulas, specified currency, issue price, redemption and
repayment provisions and other terms set forth in the Prospectus referred to in
Section 1(a) as it may be amended or supplemented from time to time, including
any supplement providing for the interest rate, maturity and other terms of any
Note (a "Pricing Supplement"). The Notes will be issued, and the terms thereof
established, from time to time, by the Company in accordance with the Indenture
and the
<PAGE>
Procedures referred to below. This Agreement shall only apply to sales of the
Notes and not to sales of any other securities or evidences of indebtedness of
the Company and only on the specific terms set forth herein.
Subject to the terms and conditions stated herein and to the reservation by
the Company of the right to sell its Notes directly on its own behalf, the
Company hereby (i) appoints each of the Agents as the agent of the Company for
the purpose of soliciting and receiving offers to purchase Notes from the
Company and (ii) agrees that whenever the Company determines to sell Notes
directly to an Agent as principal it will enter into a separate agreement (each
a "Purchase Agreement"). Each such Purchase Agreement, whether oral (and
confirmed in writing, which may be by facsimile transmission) or in writing,
shall be with respect to such information (as applicable) as specified in
Exhibit C hereto, relating to such sale in accordance with Section 2(e) hereof.
Section 1. Representations and Warranties
The Company represents and warrants to each Agent as of the date hereof, as
of the Closing Date (defined herein) and as of the times referred to in Sections
6(a) and 6(b) hereof (the Closing Date and each such time being hereinafter
sometimes referred to as a "Representation Date"), as follows:
(a) General. A registration statement on Form S-3 with respect to the
Notes has been prepared and filed by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the "Act"), and the
rules and regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder, and has become effective
under the Act. The Indenture has been qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"). As used in this Agreement (i)
"Registration Statement" means such registration statement when it became
effective under the Act, and as from time to time amended or supplemented
thereafter (if any post-effective amendment to such registration statement has
been filed with the Commission prior to the execution and delivery of this
Agreement, the time the most recent such amendment has been declared effective
by the Commission); (ii) "Basic Prospectus" means the prospectus (including all
documents incorporated therein by reference) included in the Registration
Statement; and (ii) "Prospectus" means the Basic Prospectus (together with all
documents incorporated therein by reference) and any amendments or supplements
thereto (including the applicable Pricing Supplement) relating to the Notes, as
filed with the Commission pursuant to paragraph (b) of Rule 424 of the Rules and
Regulations. The Commission has not issued any order preventing or suspending
the use of the Prospectus. Any reference in this Agreement to amending or
supplementing the Prospectus shall be deemed to include the filing of materials
incorporated by reference in the Prospectus after the Closing Date (defined
herein) and any reference in this Agreement to any amendment or supplement to
the Prospectus shall be deemed to include any such materials incorporated by
reference in the Prospectus after the Closing Date (defined herein).
(b) Registration Statement, Prospectus and Indenture: Contents. The
Registration Statement and each Prospectus conformed, and the Registration
Statement and each Prospectus will conform as of the applicable Representation
Date and at all times during each period during which, in the opinion of counsel
for the Agents, a prospectus relating to the Notes is required to be delivered
under the Act (each a "Marketing Period"), in all respects to the requirements
of
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<PAGE>
the Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
the Trust Indenture Act, and the rules and regulations of the Commission under
such Acts; the Indenture, including any amendments and supplements thereto,
conforms with the requirements of the Trust Indenture Act and the rules and
regulations of the Commission thereunder; and the Registration Statement and
each Prospectus do not, and will not as of the applicable Representation Date
and at all times during each Marketing Period, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; provided, however,
that the Company makes no representation or warranty as to information contained
in or omitted from the Registration Statement or any Prospectus in reliance upon
and in conformity with written information furnished to the Company by the
Agents specifically for inclusion therein or to any statements in or omissions
from the statement of eligibility and qualification on Form T-1 (the "Form T-1")
of the Trustee under the Trust Indenture Act.
(c) No Defaults. The Company is not in violation of its corporate charter
or by-laws or in default under any agreement, indenture or instrument, the
effect of which violation or default would be material to the Company; the
execution, delivery and performance of this Agreement, the Indenture, the Notes,
the Support Agreement, dated June 1, 1994 (the "1994 Support Agreement") between
the Company and Alco Standard Corporation ("Alco Standard"), and each
applicable Purchase Agreement, if any, and compliance by the Company with the
provisions of the Notes and the Indenture have been duly authorized by all
necessary corporate action and will not conflict with, result in the creation or
imposition of any lien, charge or encumbrance upon any of the assets of the
Company pursuant to the terms of, or constitute a default under, any agreement,
indenture or instrument, or result in a violation of the corporate charter or
by-laws of the Company or any order, rule or regulation of any court or
governmental agency having jurisdiction over the Company or its properties; and
except as required by the Act, the Trust Indenture Act, the Exchange Act and
applicable state securities laws, no consent, authorization or order of, or
filing or registration with, any court or governmental agency is required for
the execution, delivery and performance of the transactions contemplated by this
Agreement, the Notes, the 1994 Support Agreement, each applicable Purchase
Agreement, if any, or the Indenture. The Company has no subsidiaries within the
meaning of Rule 405 of the Rules and Regulations.
(d) Material Changes or Material Transactions. Except as described in the
Registration Statement and each Prospectus, (i) there has not been any material
adverse change in, or any adverse development which materially affects, the
business, properties, condition (financial or other), results of operations or
prospects of the Company, and (ii) there has been no material transaction
entered into by the Company other than those in the ordinary course of business.
(e) Accountants. Ernst & Young LLP, whose report appears in the Company's
Annual Report on Form 10-K which is incorporated by reference in each
Prospectus, are independent public accountants with respect to the Company as
required by the Act and the Rules and Regulations.
(f) Validity of the Indenture and the Notes. (i) The Indenture has been
duly authorized, executed and delivered by the Company and constitutes the valid
and legally binding obligation of the Company, enforceable in accordance with
its terms; (ii) the Notes have been validly authorized for issuance and sale
pursuant to this Agreement and, when the terms of the Notes and of their issue
and sale have been duly established in accordance with the Indenture and this
-3-
<PAGE>
Agreement so as not to violate any applicable law or agreement or instrument
binding on the Company, and the Notes have been duly executed, authenticated,
delivered and paid for as provided in this Agreement and the Indenture, the
Notes will be validly issued and outstanding, and will constitute valid and
legally binding obligations of the Company entitled to the benefits of the
Indenture and enforceable in accordance with their terms and the terms of the
Indenture; and (iii) the Notes and the Indenture conform to the descriptions
thereof contained in each Prospectus. The validity, enforceability and legally
binding nature of the Indenture and the Notes are subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
(g) Due Incorporation and Qualification. The Company has been duly
incorporated, is validly existing and in good standing under the laws of its
jurisdiction of incorporation, is duly qualified to do business and in good
standing as a foreign corporation in each jurisdiction in which its ownership of
properties or the conduct of its businesses requires such qualification (except
where the failure to obtain such qualification would not have a material adverse
effect on the Company), and has the power and authority necessary to own or hold
its properties and to conduct the businesses in which it is engaged, as
described in each Prospectus.
(h) Validity of the Support Agreements. (i) Each of the 1994 Support
Agreement, and the Maintenance Agreement, dated August 15, 1991 (the
"Maintenance Agreement") and the Operating Agreement dated August 15, 1991 (the
"Operating Agreement") between the Company and Alco Standard has been duly
authorized, executed and delivered by each of the Company and Alco Standard and
constitutes the valid and legally binding obligation of the Company and Alco
Standard and, enforceable in accordance with its terms; and (ii) such agreements
conform to the descriptions thereof contained in each Prospectus. The validity,
enforceability and legally binding nature of such agreements are subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
(i) Ownership of Property. The Company owns, or has valid rights to use,
all items of real and personal property which are material to the business of
the Company, free and clear of all liens, encumbrances and claims which may
materially interfere with the business, properties, financial condition or
results of operations of the Company.
(j) Legal Proceedings. Except as described in each Prospectus, there is
no material litigation or governmental proceeding pending or, to the knowledge
of the Company, threatened against the Company which might result in any
material adverse change in the condition (financial or other), results of
operations, business, property, or prospects of the Company or which is required
to be disclosed in the Registration Statement.
(k) Financial Statements. The audited financial statements included or
incorporated by reference in each Prospectus present and will present fairly, as
of the applicable Representation Date and at all times during each Marketing
Period, the financial condition, results of operations, changes in shareholder's
equity and cash flows of the entities purported to be shown thereby in
conformity with generally accepted accounting principles, at the dates and for
the periods
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indicated, and have been, and will be as of the applicable Representation Date
and at all times during each Marketing Period, prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the period or periods involved; and the supporting schedules, if
applicable, included or incorporated by reference in each Prospectus present,
and will present as of the applicable Representation Date and at all times
during each Marketing Period, fairly the information required to be stated
therein. The unaudited financial statements of the Company, if any, and the
related notes, included or incorporated by reference in each Prospectus present
fairly and will present fairly at all times during each period specified in
Section 3(c) hereof the financial position of the Company at the dates and for
the periods indicated in conformity with generally accepted accounting
principles (except for the absence of notes) applied on a consistent basis
throughout the periods shown, subject to normally recurring changes, and
prepared in accordance with the instructions to Form 10-Q.
(l) Documents Incorporated by Reference. The documents incorporated by
reference into any Prospectus have been, and will be as of the applicable
Representation Date and at all times during each Marketing Period, prepared by
the Company in conformity with the applicable requirements of the Act and the
Rules and Regulations and the Exchange Act and the rules and regulations of the
Commission thereunder; and none of such documents contained, or will contain as
of the applicable Representation Date and at all times during each Marketing
Period, an untrue statement of a material fact or omitted, or will omit, to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; and such documents have been, or will be, as
of the applicable Representation Date and at all times during each Marketing
Period, timely filed as required thereby.
(m) Exhibits to Registration Statement. There are no contracts or other
documents which are required to be filed as exhibits to the Registration
Statement by the Act or by the Rules and Regulations, or which were required to
be filed as exhibits to any document incorporated by reference in any Prospectus
by the Exchange Act or the rules and regulations of the Commission thereunder,
which have not been filed as exhibits to the Registration Statement or to such
document or incorporated therein by reference as permitted by the Rules and
Regulations or the rules and regulations of the Commission under the Exchange
Act, as the case may be.
(n) Licenses, Approvals and Consents. The Company has all licenses,
approvals and consents for the conduct of its business the failure of which to
have would have a material adverse effect on the business, properties, financial
condition or results of operations of the Company.
(o) Investment Company Act. The Company is not required to register under
the provisions of the Investment Company Act of 1940, as amended (the
"Investment Company Act"), and no action need be taken with respect to or under
the Investment Company Act by reason of the issuance of the Notes by the
Company.
(p) Rating. The Notes have been rated by a "nationally recognized
statistical rating agency" (as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act), including one or both of Moody's
Investor Services, Inc. and Standard & Poor's Corporation.
(q) Doing Business with Cuba. The Company confirms as of the date hereof,
and each acceptance by the Company of an offer to purchase Notes will be deemed
to be an affirmation,
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that the Company is in compliance with all provisions of Section 1 of Laws of
Florida, Chapter 92-198, An Act Relating to Disclosure of Doing Business with
Cuba, and the Company further agrees that if it commences engaging in business
with the government of Cuba or with any person or affiliate located in Cuba
after the date the Registration Statement becomes or has become effective with
the Commission or with the Florida Department of Banking and Finance (the
"Department"), whichever date is later, or if the information reported in the
Prospectus, if any, concerning the Company's business with Cuba or with any
person or affiliate located in Cuba changes in any material way, the Company
will provide the Department notice of such business or change, as appropriate,
in a form acceptable to the Department.
(r) True and Complete Documents. The certificates delivered pursuant to
paragraph (f) of Section 5 hereof and all other documents delivered by the
Company or its representatives in connection with the issuance and sale of the
Notes were on the dates on which they were delivered, or will be on the dates on
which they are to be delivered, true and complete in all material respects.
Section 2. Solicitations as Agent; Purchases as Principal
(a) Appointment. Subject to the terms and conditions stated herein, the
Company hereby appoints each of the Agents as the agent of the Company for the
purpose of soliciting or receiving offers to purchase the Notes from the Company
by others. On the basis of the representations and warranties contained herein,
but subject to the terms and conditions herein set forth, each Agent agrees, as
the agent of the Company, to use its reasonable efforts to solicit offers to
purchase the Notes upon the terms and conditions set forth in the Prospectus.
The Company may offer the Notes for sale from time to time otherwise than
through an Agent. However, so long as this Agreement is in effect the Company
shall not solicit offers to purchase Notes through any agent without (i)
amending this Agreement to appoint such agent as an additional Agent hereunder
on the same terms and conditions as provided herein for the Agents (the consent
of the then current Agents shall not be necessary for such purpose) and (ii)
delivering 2 days prior written notice thereof to the Agents. The Company may,
however, accept offers to purchase Notes through an agent other than an Agent,
provided that (i) the Company shall not have solicited such offers, (ii) the
Company and such agent shall have executed an agreement with respect to such
purchases having the same terms and conditions (including, without limitation,
commission and discount rates) as those which would apply to such purchases
under this Agreement if such agent were an Agent (which may be accomplished by
incorporating by reference in such agreement the terms and conditions of this
Agreement) and (iii) the Company shall provide the Agents with a copy of such
agreement promptly following the execution thereof. Each Agent may also purchase
Notes from the Company as principal for purposes of resale, as more fully
described in paragraph (e) of this Section.
(b) Suspension of Solicitation. The Company reserves the right, in its
sole discretion, to suspend solicitation of offers to purchase the Notes
commencing at any time for any period of time or indefinitely. Upon receipt of
at least one business day's prior written notice from the Company, the Agents
will forthwith suspend solicitation of offers to purchase Notes from the Company
until such time as the Company has advised the Agents that such solicitation may
be resumed. For the purpose of the foregoing sentence, "business day" shall mean
any day which is not a Saturday or Sunday and which is not a day on which (i)
banking institutions are generally
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authorized or obligated by law to close in The City of New York and (ii) the New
York Stock Exchange, Inc. is closed for trading.
Upon receipt of notice from the Company as contemplated by Section 3(c)
hereof, each Agent shall suspend its solicitation of offers to purchase Notes
until such time as the Company shall have furnished it with an amendment or
supplement to the Registration Statement or the Prospectus, as the case may be,
contemplated by Section 3(c) and shall have advised such Agent that such
solicitation may be resumed.
(c) Agent's Commission. Promptly upon the closing of the sale of any
Notes sold by the Company as a result of a solicitation made by or offer to
purchase received by an Agent, the Company agrees to pay such Agent a
commission, in the form of a discount, in accordance with the schedule set forth
in Exhibit A hereto.
(d) Solicitation of Offers. The Agents are authorized to solicit offers
to purchase the Notes only in denominations as are specified in the Prospectus
at a purchase price as shall be specified by the Company. Each Agent shall
communicate to the Company, orally or in writing, each reasonable offer to
purchase Notes received by it as an Agent. The Company shall have the sole right
to accept offers to purchase the Notes and may reject any such offer in whole or
in part. Each Agent shall have the right, in its discretion reasonably exercised
without advising the Company, to reject any offer to purchase the Notes received
by it, in whole or in part, and any such rejection shall not be deemed a breach
of its agreement contained herein.
No Note which the Company has agreed to sell pursuant to this Agreement
shall be deemed to have been purchased and paid for, or sold by the Company,
until such Note shall have been delivered to the purchaser thereof against
payment by such purchaser.
(e) Purchases as Principal. Each sale of Notes to any Agent as principal,
for resale to one or more investors or to another broker-dealer (acting as
principal for purposes of resale), shall be made in accordance with the terms of
this Agreement and a Purchase Agreement whether oral (and confirmed in writing
by such Agent to the Company, which may be by facsimile transmission) or in
writing, which will provide for the sale of such Notes to, and the purchase
thereof by, such Agent. A Purchase Agreement may also specify certain provisions
relating to the reoffering of such Notes by such Agent. The commitment of any
Agent to purchase Notes from the Company as principal shall be deemed to have
been made on the basis of the representations and warranties of the Company
herein contained and shall be subject to the terms and conditions herein set
forth. Each Purchase Agreement shall specify the principal amount and terms of
the Notes to be purchased by an Agent, the time and date (each such time and
date being referred to herein as a "Time of Delivery") and place of delivery of
and payment for such Notes and such other information (as applicable) as is set
forth in Exhibit C hereto. The Company agrees that if any Agent purchases Notes
as principal for resale such Agent shall receive such compensation, in the form
of a discount or otherwise, as shall be indicated in the applicable Purchase
Agreement or, if no compensation is indicated therein a commission in accordance
with Exhibit A hereto. Any Agent may utilize a selling or dealer group in
connection with the resale of such Notes. In addition, any Agent may offer the
Notes it has purchased as principal to other dealers. Any Agent may sell Notes
to any dealer at a discount and, unless otherwise specified in the applicable
Pricing Supplement, such discount allowed to any dealer will not be in excess of
66 2/3% of the discount to be received by such Agent from the Company. Such
Purchase
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<PAGE>
Agreement shall also specify any requirements for delivery of opinions of
counsel, accountant's letters and officers' certificates pursuant to Section 5
hereof.
(f) Administrative Procedures. Administrative procedures respecting the
sale of Notes (the "Procedures") are set forth in Exhibit B hereto and may be
amended in writing from time to time by the Agents and the Company. Each Agent
and the Company agree to perform the respective duties and obligations
specifically provided to be performed by each of them herein and in the
Procedures. The Procedures shall apply to all transactions contemplated
hereunder including sales of Notes to any Agent as principal pursuant to a
Purchase Agreement, unless otherwise set forth in such Purchase Agreement.
(g) Delivery of Documents. The documents required to be delivered by
Section 5 hereof shall be delivered at the offices of Sullivan & Cromwell, 125
Broad Street, New York, New York 10004, not later that 10:00 A.M., New York City
time, on the date of this Agreement or at such later time as may be mutually
agreed upon by the Company and the Agents, which in no event shall be later than
the time at which the Agents commence solicitation of offers to purchase Notes
hereunder (the "Closing Date").
Section 3. Covenants of the Company
The Company covenants and agrees:
(a) Delivery of Signed Registration Statement. To furnish promptly to the
Agents and to their counsel a signed copy of the Registration Statement as
originally filed and each amendment or supplement thereto.
(b) Delivery of Other Documents. To deliver promptly to the Agents, and
in such number as they may request, each of the following documents: (i)
conformed copies of the Registration Statement (excluding exhibits other than
the computation of the ratio of earnings to fixed charges, the Indenture, this
Agreement and such other exhibits that the Agents may request), (ii) the Basic
Prospectus, (iii) each Prospectus and (iv) any documents incorporated by
reference in the Prospectus.
(c) Revisions to Prospectus - Material Changes. If, during any Marketing
Period, any event occurs as a result of which the Prospectus would include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein not misleading, or if it is necessary at any time
to amend any Prospectus to comply with the Act, to notify the Agents promptly,
in writing, to suspend solicitation of purchases of the Notes; and if the
Company shall decide to amend or supplement the Registration Statement or any
Prospectus, to promptly advise the Agents by telephone (with confirmation in
writing) and to promptly, in writing, prepare and file with the Commission an
amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance; provided, however, that if during
the period referred to above any Agent shall own any Notes which it has
purchased from the Company as principal with the intention of reselling them,
the Company shall promptly prepare and timely file with the Commission any
amendment or supplement to the Registration Statement or any Prospectus that
may, in the judgment of the Company or the Agents, be required by the Act or
requested by the Commission.
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<PAGE>
(d) Commission Filings. To timely file with the Commission during any
Marketing Period, all documents (and any amendments to previously filed
documents) required to be filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act.
(e) Copies of Filings with Commission. Prior to filing with the
Commission during any Marketing Period, (i) any amendment or supplement to the
Registration Statement, (ii) any amendment or supplement to any Prospectus or
(iii) any document incorporated by reference in any of the foregoing or any
amendment of or supplement to any such incorporated document, to furnish a copy
thereof to the Agents.
(f) Notice to Agent of Certain Events. To advise the Agents immediately
(i) when any post-effective amendment to the Registration Statement relating to
or covering the Notes becomes effective, (ii) of any request or proposed request
by the Commission for an amendment or supplement to the Registration Statement,
to any Prospectus, to any document incorporated by reference in any of the
foregoing or for any additional information and the Company will afford the
Agents a reasonable opportunity to comment on any such proposed amendment or
supplement, (iii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or any part thereof or any order
directed to any Prospectus or any document incorporated therein by reference or
the initiation or threat of any stop order proceeding or of any challenge to the
accuracy or adequacy of any document incorporated by reference in any
Prospectus, (iv) of receipt by the Company of any notification with respect to
the suspension of the qualification of the Notes for sale in any jurisdiction or
the initiation or threat of any proceeding for that purpose, (v) of any
downgrading in the rating of the Notes or any other debt securities of the
Company, or any proposal to downgrade the rating of the Notes or any other debt
securities of the Company, by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or any
public announcement that any such organization has under surveillance or review
its rating of any debt securities of the Company (other than an announcement
with positive implications of a possible upgrading, and no implication of a
possible downgrading of such rating) as soon as the Company learns of any such
downgrading, proposal to downgrade or public announcement and (vi) of the
happening of any event which makes untrue any statement of material fact made in
the Registration Statement or any Prospectus or which requires the making of a
change in the Registration Statement or any Prospectus in order to make any
material statement therein not misleading.
(g) Stop Orders. If, during any Marketing Period, the Commission shall
issue a stop order suspending the effectiveness of the Registration Statement,
to make every reasonable effort to obtain the lifting of that order at the
earliest possible time.
(h) Earnings Statements. As soon as practicable, but not later than 18
months, after the date of each acceptance by the Company of an offer to purchase
Notes hereunder, to make generally available to its security holders an earnings
statement covering a period of at least 12 months beginning after the later of
(i) the effective date of the Registration Statement, (ii) the effective date of
the most recent post-effective amendment to the Registration Statement to become
effective prior to the date of such acceptance and (iii) the date of the
Company's most recent Annual Report on Form 10-K filed with the Commission prior
to the date of such acceptance which will satisfy the provisions of Section
11(a) of the Act (including, at the option of the Company, Rule 158 of the Rules
and Regulations under the Act).
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<PAGE>
(i) Copies of Reports, Releases and Financial Statements. So long as any
of the Notes are outstanding, to furnish to the Agents, not later than the time
the Company makes the same available to others, copies of all public reports or
releases and all reports and financial statements furnished by the Company to
any securities exchange on which the Notes are listed pursuant to requirements
of or agreements with such exchange or to the Commission pursuant to the
Exchange Act or any rule or regulation of the Commission thereunder.
(j) Blue Sky Qualifications. To endeavor, in cooperation with the Agents,
to qualify the Notes for offering and sale under the securities laws of such
jurisdictions as the Agents may designate, and to maintain such qualifications
in effect for as long as may be required for the distribution of the Notes; and
to file such statements and reports as may be required by the laws of each
jurisdiction in which the Notes have been qualified as above provided.
(k) Holdback. Between the date of a Purchase Agreement and the date of
delivery of the Notes with respect thereto, the Company will not offer or sell,
or enter into any agreement to sell, any of its debt securities, other than
borrowings under the Company's revolving credit agreements and lines of credit,
the private placement of securities and issuances of its commercial paper.
(l) Pricing Supplement. To prepare, with respect to any Notes to be sold
through or to the Agents pursuant to this Agreement, a Pricing Supplement with
respect to such Notes in a form previously approved by the Agents and to file
such Pricing Supplement timely pursuant to Rule 424 under the Act with the
Commission.
Section 4. Payment of Expenses
The Company will pay:
(i) the costs incident to the authorization, issuance, sale and
delivery of the Notes and any taxes payable in that connection,
(ii) the costs incident to the preparation, printing and filing
under the Act of the Registration Statement and any amendments and exhibits
thereto,
(iii) the costs incident to the preparation, printing and filing
of any document and any amendments and exhibits thereto required to be
filed by the Company under the Exchange Act,
(iv) the costs of distributing the Registration Statement as
originally filed, and each amendment and post-effective amendment thereof
(including exhibits), the Basic Prospectus, each Prospectus, any supplement
or amendment to any Prospectus and any documents incorporated by reference
in any of the foregoing documents,
(v) the fees and disbursements of the Trustee, any paying agent,
any calculation agent, any exchange agent and any other agents appointed by
the Company, and their respective counsel,
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(vi) the costs and fees in connection with the listing of the
Notes on any securities exchange,
(vii) the cost and fees in connection with any filings with the
National Association of Notes Dealers, Inc.,
(viii) the fees and disbursements of counsel to the Company and
counsel to the Agents,
(ix) the fees paid to rating agencies in connection with the
rating of the Notes,
(x) the fees and expenses of qualifying the Notes under the
securities laws of the several jurisdictions as provided in Section 3(j)
hereof and of preparing and printing a Blue Sky Memorandum and a memorandum
concerning the legality of the Notes as an investment (including fees and
expenses of counsel for the Agents in connection therewith),
(xi) all advertising expenses in connection with the offering of
the Notes incurred with the consent of the Company, and
(xii) all other costs and expenses arising out of the
transactions contemplated hereunder and incident to the performance of the
Company's obligations under this Agreement or otherwise in connection with
the activities of the Agents under this Agreement.
Section 5. Conditions of Obligations of Agent
The obligation of the Agents, as agents of the Company, under this
Agreement to solicit offers to purchase the Notes, the obligation of any person
who has agreed to purchase Notes to make payment for and take delivery of Notes,
and the obligation of any Agent to purchase Notes pursuant to any Purchase
Agreement, is subject to the accuracy, on each Representation Date, of the
representations and warranties of the Company contained herein, to the accuracy
of the statements of the Company's officers made in any certificate furnished
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder, and to each of the following additional terms and
conditions:
(a) Registration Statement. The Prospectus as amended or supplemented
(including the Pricing Supplement) with respect to such Notes shall have been
filed with the Commission pursuant to Rule 424(b) under the Act within the
applicable time period prescribed for such filing by the Rules and Regulations
and in accordance with Section 3(1) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof nor any order
directed to any document incorporated by reference in any Prospectus have been
issued and no stop order proceeding shall have been initiated or threatened by
the Commission and no challenge shall have been made to the accuracy or adequacy
of any document incorporated by reference in any Prospectus; any request of the
Commission for inclusion of additional information in the Registration Statement
or any Prospectus or otherwise shall have been complied with; and the Company
shall not have filed with the Commission any amendment or supplement to the
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Registration Statement or any Prospectus (or any document incorporated by
reference therein) without the consent of the Agents.
(b) No Suspension of Sale of the Notes. No order suspending the sale of
the Notes in any jurisdiction designated by the Agents pursuant to Section 3(j)
hereof shall have been issued, and no proceeding for that purpose shall have
been initiated or threatened.
(c) No Material Omissions or Untrue Statements. The Agents shall not have
discovered and disclosed to the Company that the Registration Statement or any
Prospectus contains an untrue statement of a fact which, in the opinion of
counsel for the Agents, is material or omits to state a fact which, in the
opinion of such counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(d) Legal Matters Satisfactory to Counsel. All corporate proceedings and
other legal matters incident to the authorization, form and validity of this
Agreement, the Notes, the Indenture, the form of the Registration Statement,
each Prospectus (other than financial statements and other financial data) and
all other legal matters relating to this Agreement and the transactions
contemplated hereby shall be satisfactory in all respects to counsel for the
Agents and the Company shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass upon such
matters.
(e) Opinion of Company Counsel. At the Closing Date, the Agents shall
have received the opinion, addressed to the Agents and dated the Closing Date,
of J. Kenneth Croney, General Counsel of Alco Standard Corporation, in form and
substance satisfactory to the Agents and counsel, to the effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing under the laws of its jurisdiction of
incorporation, is duly qualified to do business and in good standing as a
foreign corporation in all jurisdictions in which its ownership of
properties or the conduct of its businesses requires such qualification
(except where the failure to so qualify would not have a material adverse
effect on the Company), and has all power and authority necessary to own
its properties and conduct the businesses in which it is engaged, as
described in the Prospectus;
(ii) Such counsel has no reason to believe that the Registration
Statement, as of its effective date, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or the
Prospectus contains any untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made not misleading, it being understood that such counsel need express no
opinion as to the financial statements or other financial information
contained or incorporated therein or omitted therefrom, or the Form T-1
that is an exhibit to the Registration Statement;
(iii) Such counsel does not know, after reasonable
investigation, of any litigation or any governmental proceeding pending or
threatened against the Company which would affect the subject matter of
this Agreement or is required to be disclosed in the Prospectus which is
not disclosed and correctly summarized therein;
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(iv) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of the
transactions contemplated herein except such as have been obtained under
the Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the sale of the Notes as contemplated by
this Agreement and such other approvals (specified in such opinion) as have
been obtained;
(v) Such counsel does not know, after reasonable investigation,
of any contracts or other documents which are required to be filed as
exhibits to the Registration Statement by the Act or by the Rules and
Regulations, or which are required to be filed by the Exchange Act or the
rules and regulations of the Commission thereunder as exhibits to any
document incorporated by reference in the Prospectus, which have not been
filed as exhibits to the Registration Statement or to such document or
incorporated therein by reference as permitted by the Rules and Regulations
or the rules and regulations of the Commission under the Exchange Act;
(vi) To the best of such counsel's knowledge, the Company is not
in violation of its corporate charter or by-laws, or in default (except
where such default would not have a material adverse effect upon the
Company) under any agreement, indenture or instrument;
(vii) The execution, delivery and performance of this Agreement,
the 1994 Support Agreement and the Purchase Agreements, if any, and
compliance by the Company with the provisions of the Notes and the
Indenture will not conflict with, or result in the creation or imposition
of any lien, charge or encumbrance upon any of the assets of the Company
pursuant to the terms of, or constitute a default under, any agreement,
indenture or instrument known to such counsel, or result in a violation of
the corporate charter or by-laws of the Company (as in effect on the date
of such opinion) or any order, rule or regulation (also as in effect on the
date of such opinion) of any court or governmental agency having
jurisdiction over the Company or its properties; and no consent,
authorization or order of, or filing or registration with, any court or
governmental agency is required for the execution, delivery and performance
by the Company of this Agreement, the 1994 Support Agreement and the
Purchase Agreements, if any, except such as may be required by the Act, the
Trust Indenture Act, the Exchange Act or state securities laws;
(viii) The Indenture has been duly authorized by the Company,
duly executed and delivered by the Company and the Trustee and duly
qualified under the Trust Indenture Act and is a valid and legally binding
obligation of the Company enforceable in accordance with its terms;
(ix) The Notes are in a form contemplated by the Indenture and
have been duly authorized by all necessary corporate action and, when the
terms of the Notes and of their issue and sale have been duly established
in accordance with the Indenture and this Agreement so as not to violate
any applicable law or agreement or instrument then binding on the Company,
and when the Notes have been duly executed and authenticated as specified
in the Indenture and delivered against payment therefor in accordance with
this Agreement, the Notes will be legal, valid and binding obligations of
the Company enforceable in accordance with their terms, and entitled to the
benefits of the Indenture;
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(x) The Notes and the Indenture conform to the statements
concerning each of them in the Registration Statement and the Prospectus;
(xi) Each of the 1994 Support Agreement, the Operating Agreement
and the Maintenance Agreement has been duly authorized, executed and
delivered by each of the Company and Alco Standard and constitutes the
valid and legally binding obligation of the Company and Alco Standard in
accordance with its terms; and (ii) such agreements conform to the
descriptions thereof contained in each Prospectus.
(xii) The Registration Statement has become effective under the
Act and, to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose is pending or threatened by the Commission;
(xiii) To the knowledge of such counsel, after reasonable
investigation, no order directed to any document incorporated by reference
in the Prospectus has been issued and no challenge has been made to the
accuracy or adequacy of any such document; and they have no reason to
believe that any of such documents, when they became effective or were so
filed, as the case may be, contained, in the case of a registration
statement which became effective under the Act, an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and, in
the case of other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made when such
documents were so filed, not misleading;
(xiv) The Registration Statement and the Prospectus (except that
no opinion need be expressed as to the financial statements and other
financial data contained therein or the Form T-1 that is an exhibit
thereto) comply as to form in all material respects with the requirements
of the Act and the Trust Indenture Act and the rules and regulations of the
Commission under said Acts and the documents incorporated by reference in
the Prospectus (except that no opinion need be expressed as to the
financial statements and other financial data contained therein) comply as
to form in all material respects with the applicable requirements of the
Exchange Act and the rules and regulations of the Commission thereunder;
(xv) The statements made in the Prospectus under the captions
"Description of Debt Securities" and "Description of Notes," insofar as
they purport to summarize the provisions of documents or agreements
specifically referred to therein, fairly present the information called for
with respect thereto by Form S-3;
(xvi) The Company has the corporate power and authority
necessary to execute and deliver this Agreement and the 1994 Support
Agreement, and to perform its obligations (including the sale and delivery
of the Notes under this Agreement) thereunder; and this Agreement has been
duly authorized, executed and delivered by the Company;
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(xvii) The Company is not required to register under the
provisions of the Investment Company Act, and no action need be taken with
respect to or under the Investment Company Act by reason of the issuance of
the Notes by the Company; and
(xviii) The description contained in the Prospectus under the
heading "Certain United States Federal Income Tax Consequences" while not
purporting to discuss all possible income tax ramifications of the proposed
issuance, is correct in all material respects.
The opinions set forth in paragraphs (viii), (ix) and (xi) above are
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (regardless of whether
such enforceability is considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(f) Officers' Certificate. The Company shall have furnished to the Agents
on the Closing Date a certificate, dated the Closing Date, of its President or a
Vice President and its Treasurer or an Assistant Treasurer stating that:
(i) The representations, warranties and agreements of the
Company in Section 1 hereof are true and correct as of the Closing Date;
the Company has complied with all its agreements contained herein; and the
conditions set forth in Sections 5(a) and 5(b) hereof have been fulfilled;
and
(ii) They have carefully examined the Registration Statement and
the Prospectus and, in their opinion, (A) the Registration Statement, as of
its effective date, did not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (B) the Prospectus
does not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, and (C) since the effective date of the
Registration Statement there has not occurred any event required to be set
forth in an amended or supplemented prospectus which has not been so set
forth.
(g) Accountant's Letter. The Company shall have furnished to the Agents
on the Closing Date a letter of Ernst & Young LLP, addressed jointly to the
Company and the Agents and dated the Closing Date, of the type described in the
American Institute of Certified Public Accountants' Statement on Auditing
Standards No. 72, in form and substance reasonably satisfactory to the Agents
confirming that they are independent accountants within the meaning of the Act
and the applicable published Rules and Regulations thereunder and stating in
effect that:
(i) In their opinion, the financial statements examined by them
and incorporated by reference in the prospectus contained in the
Registration Statement comply in form in all material respects with the
applicable accounting requirements of the Act and the related published
Rules and Regulations;
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<PAGE>
(ii) They have made a review of any unaudited financial
statements incorporated by reference in the Prospectus in accordance with
standards established by the American Institute of Certified Public
Accountants;
(iii) On the basis of the review referred to in (ii) above and a
reading of the latest available interim financial statements of the
Company, inquiries of officials of the Company who have responsibility for
financial and accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements, if any, incorporated by
reference in the Prospectus do not comply in form in all material
respects with the applicable accounting requirements of the Act and
the related published Rules and Regulations or are not in conformity
with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial statements
incorporated by reference in the Prospectus;
(B) the unaudited capsule information, if any, included in the
Prospectus does not agree with the amounts set forth in the unaudited
financial statements from which it was derived or was not determined
on a basis substantially consistent with that of the audited financial
statements incorporated by reference in the Prospectus;
(C) at the date of the latest available balance sheet read by
such accountants, or at a subsequent specified date not more than five
days prior to the Closing Date, there was any change in the capital
stock, any increase in short-term indebtedness or long-term debt of
the Company or, at the date of the latest available balance sheet read
by such accountants, there was any decrease in net assets as compared
with amounts shown on the latest balance sheet incorporated by
reference in the Prospectus; or
(D) for the period from the date of the latest income statement
included in the Prospectus to the closing date of the latest available
income statement read by such accountants there were any decreases, as
compared with the corresponding period of the previous year in
revenues, income before income taxes and cumulative effect of
accounting change, or net income, or in the ratio of earnings to fixed
charges;
except in all cases set forth in clauses (C) and (D) above for changes,
increases or decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(iv) They have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information contained
in the Prospectus (in each case to the extent that such dollar amounts,
percentages and other financial information are derived from the general
accounting records of the Company subject to the internal controls of the
Company's accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures specified
in such letter
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<PAGE>
and have found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as otherwise
specified in such letter.
All financial statements included in material incorporated by reference
into the Prospectus shall be deemed included in the Prospectus for purposes of
this subsection.
(h) The Agents shall have received from Sullivan & Cromwell, counsel to
the Agents, such opinion or opinions, dated the Closing Date, with respect to
the issuance and sale of the Notes, the Indenture, the Registration Statement,
the Prospectus and other related matters as the Agents may reasonably require,
and the Company shall have furnished to such counsel such documents as they may
request for the purpose of enabling them to pass upon such matters.
(i) Additional Conditions. There shall not have occurred: (i) any change in
the capital stock or long-term debt of the Company or any of its Subsidiaries or
any change, or any development involving a prospective change, in or affecting
the general affairs, management, shareholder's equity, business, properties,
condition (financial or other), results of operations or prospects of the
Company which in the opinion of the Agents materially impairs the investment
quality of the Notes; (ii) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange, the American Stock Exchange
or the over-the-counter market or the establishment of minimum prices on such
exchanges or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction; (iii) a general
moratorium on commercial banking activities declared by Federal, or New York
State authorities; (iv) any downgrading in the rating accorded the Company's
debt securities by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or review its
rating of any debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war by
Congress or any other substantial national calamity or emergency; or (vi) any
material adverse change in the existing financial, political or economic
conditions in the United States, including any effect of international
conditions on the financial markets in the United States, that in the judgment
of the Agents makes it impracticable or inadvisable to proceed with the
solicitation of offers to purchase Notes or the purchase of Notes from the
Company as principal pursuant to the applicable Purchase Agreement, as the case
may be.
(j) Other Information and Documentation. Prior to the Closing Date, the
Company shall have furnished to the Agents such further information,
certificates and documents as the Agents or counsel to the Agents may reasonably
request.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in the form and substance satisfactory to
counsel for the Agents.
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Section 6. Additional Covenants of the Company
The Company covenants and agrees that:
(a) Acceptance of Offer Affirms Representations and Warranties. Each
acceptance by it of an offer for the purchase of Notes shall be deemed to be an
affirmation that the representations and warranties of the Company contained in
this Agreement and in any certificate theretofore given to the Agents pursuant
hereto are true and correct at the time of such acceptance, and an undertaking
that such representations and warranties will be true and correct at the time of
delivery to the purchaser or his agent of the Notes relating to such acceptance
as though made at and as of each such time (and such representations and
warranties shall relate to the Registration Statement and the Prospectus as
amended or supplemented to each such time).
(b) Subsequent Delivery of Officers' Certificates. The Company agrees
that during each Marketing Period, each time that the Registration Statement or
any Prospectus shall be amended or supplemented (other than by a Pricing
Supplement providing solely for the interest rates or maturities of the Notes or
the principal amount of Notes remaining to be sold or similar changes), each
time the Company sells Notes to an Agent as principal and the applicable
Purchase Agreement specifies the delivery of an officers' certificate under this
Section 6(b) as a condition to the purchase of Notes pursuant to such Purchase
Agreement or the Company files with the Commission any document incorporated by
reference into any Prospectus, the Company shall submit to the Agents a
certificate, (i) as of the date of such amendment, supplement, Time of Delivery
relating to such sale or filing or (ii) if such amendment, supplement or filing
was not filed during a Marketing Period, as of the first day of the next
succeeding Marketing Period, representing that the statements contained in the
certificate referred to in Section 5(f) hereof which was last furnished to the
Agents are true and correct at the time of such amendment, supplement or filing,
as the case may be, as though made at and as of such time (except that such
statements shall be deemed to relate to the Registration Statement and each
Prospectus as amended and supplemented to such time).
(c) Subsequent Delivery of Legal Opinions. The Company agrees that during
each Marketing Period, each time that the Registration Statement or any
Prospectus shall be amended or supplemented (other than by a Pricing Supplement
providing solely for the interest rates or maturities of the Notes or the
principal amount of Notes remaining to be sold or similar changes), each time
the Company sells Notes to an Agent as principal and the applicable Purchase
Agreement specifies the delivery of a legal opinion under this Section 6(c) as a
condition to the purchase of Notes pursuant to such Purchase Agreement or the
Company files with the Commission any document incorporated by reference into
any Prospectus, the Company shall, (i) concurrently with such amendment,
supplement, Time of Delivery relating to such sale or filing or (ii) if such
amendment, supplement or filing was not filed during a Marketing Period, on the
first day of the next succeeding Marketing Period, furnish the Agents and their
counsel with the written opinions of the General Counsel of the Company, each
addressed to the Agents and dated the date of delivery of such opinion, in form
satisfactory to the Agents, of the same effect as the opinions referred to in
Section 5(e) hereof, but modified, as necessary, to relate to the Registration
Statement and each Prospectus as amended or supplemented to the time of delivery
of such opinion; provided, however, that in lieu of such opinion, such counsel
may furnish the Agents with a letter to the effect that the Agents may rely on
such prior opinion to the same extent as though it was dated the date of such
letter authorizing reliance (except that statements in such prior opinion shall
be deemed to relate to the Registration Statement and each
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Prospectus as amended or supplemented to the time of delivery of such letter
authorizing reliance).
(d) Subsequent Delivery of Accountant's Letters. The Company agrees that
during each Marketing Period, each time that the Registration Statement or any
Prospectus shall be amended or supplemented to include additional financial
information, each time the Company sells Notes to an Agent as principal and the
applicable Purchase Agreement specifies the delivery of a letter under this
Section 6(d) as a condition to the purchase of Notes pursuant to such Purchase
Agreement or the Company files with the Commission any document incorporated by
reference into any Prospectus which contains additional financial information,
the Company shall cause Ernst & Young (or other independent accounts of the
Company acceptable to the Agents) to furnish the Agents, (i) concurrently with
such amendment, supplement, Time of Delivery relating to such sale or filing or
(ii) if such amendment, supplement, or filing was not filed during a Marketing
Period, on the first day of the next succeeding Marketing Period, a letter,
addressed jointly to the Company and the Agents and dated the date of delivery
of such letter, in form and substance reasonably satisfactory to the Agents, of
the same effect as the letter referred to in Section 5(g) hereof but modified to
relate to the Registration Statement and each Prospectus, as amended and
supplemented to the date of such letter, with such changes as may be necessary
to reflect changes in the financial statements and other information derived
from the accounting records of the Company; provided, however, that if the
Registration Statement or any Prospectus is amended or supplemented solely to
include financial information as of and for a fiscal quarter, such accountants
may limit the scope of such letter to the unaudited financial statements
included in such amendment or supplement unless there is contained therein any
other accounting, financial or statistical information that, in the reasonable
judgment of the Agents, should be covered by such letter, in which event such
letter shall also cover such other information.
(e) Opinion on Settlement Date. On any settlement date for the sale of
Notes, the Company shall, if requested by the Agent that solicited or received
the offer to purchase any Notes being delivered on such settlement date, furnish
such Agent with a written opinion of the General Counsel of the Company, dated
such settlement date, in form satisfactory to such Agent, to the effect set
forth in Section 5(e) hereof, but modified, as necessary, to relate to the
Prospectus relating to the Notes to be delivered on such settlement date;
provided, however, that in lieu of such opinion, such counsel may furnish the
Agents with a letter to the effect that the Agents may rely on such prior
opinion to the same extent as though it was dated such settlement date (except
that statements in such prior opinion shall be deemed to relate to the
Registration Statement and such Prospectus as amended or supplemented to the
time of delivery of such letter authorizing reliance).
Section 7. Indemnification and Contribution
(a) Indemnification of Agents. The Company shall indemnify and hold
harmless each Agent and each person, if any, who controls any Agent within the
meaning of the Act from and against any loss, claim, damage or liability, joint
or several, and any action in respect thereof, to which such Agent or
controlling person may become subject, under the Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus, or arises out of, or
is based upon, the omission or alleged omission to state therein
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<PAGE>
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and shall reimburse each Agent and
controlling person for any legal and other expenses reasonably incurred by such
Agent or controlling person in investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action; provided, however,
that the Company shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of, or is based upon,
any untrue statement or alleged untrue statement or omission or alleged omission
made in the Form T-1 or made in the Registration Statement or the Prospectus in
reliance upon and in conformity with written information furnished to the
Company by the Agents specifically for inclusion therein; provided further, that
as to any prospectus included in the Registration Statement before it became
effective under the Act (a "Preliminary Prospectus") this indemnity agreement
shall not inure to the benefit of any Agent on account of any loss, claim,
damage, liability or action arising from the sale of Notes to any person by that
Agent if that Agent failed to send or give a copy of the Prospectus, as the same
may be amended or supplemented, to that person within the time required by the
Act, and the untrue statement or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact in such Preliminary
Prospectus was corrected in the Prospectus, unless such failure resulted from
non-compliance by the Company with Section 3(b). The foregoing indemnity
agreement is in addition to any liability which the Company may otherwise have
to any Agent or controlling person.
(b) Indemnification of the Company. Each Agent shall indemnify and hold
harmless the Company, each of its directors, each of its officers who signed the
Registration Statement and any person who controls the Company within the
meaning of the Act from and against any loss, claim, damage or liability, joint
or several, and any action in respect thereof, to which the Company or any such
director, officer or controlling person may become subject, under the Act, the
Exchange Act or federal or state statutory law or regulation, at common law or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus, or
arises out of, or is based upon, the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by such Agent specifically for inclusion therein, and shall
reimburse the Company or any such director, officer or controlling person for
any legal and other expenses reasonably incurred by such indemnified party in
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action. The foregoing indemnity agreement is in addition to
any liability which any Agent may otherwise have to the Company or any of its
directors, officers or controlling persons.
(c) Notice. Promptly after receipt by an indemnified party under this
Section of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section, notify the indemnifying party in writing
of the claim or the commencement of action; provided, however, that the failure
to notify the indemnifying party shall not relieve it from any liability which
it may have to an indemnified party otherwise than under this Section. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein, and, to the extent that it wishes, jointly with any
other similarly notified indemnifying party, to assume the defense thereof with
counsel satisfactory to the indemnified
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<PAGE>
party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section for any legal or
other expenses subsequently incurred by the indemnified party in connection with
the defense thereof other than reasonable costs of investigation; provided,
however, that the Agents shall have the right to employ counsel to represent the
Agents who may be subject to liability arising out of any claim in respect of
which indemnity may be sought by the Agents against the Company under this
Section if, in the reasonable judgment of the Agents, it is advisable for the
Agents to be represented by separate counsel, and in that event the fees and
expenses of such counsel shall be paid by the Company. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(d) Contribution. If the indemnification provided for in this Section 7
shall for any reason be unavailable to an indemnified party under Section 7(a)
or 7(b) hereof in respect of any loss, claim, damage or liability, or any action
in respect thereof, referred to therein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute
to the amount paid or payable by such indemnified party as a result of such
loss, claim, damage or liability, or action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative benefits received by
the Company on the one hand and any Agents on the other from the offering of the
Notes or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and any Agents on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and any Agents on the other with respect to such offering shall be deemed to be
in the same proportion as the total net proceeds from the offering of the Notes
(before deducting expenses) received by the Company bears to the total
commissions received by the such Agent with respect to such offering. The
relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or any Agent, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Agents agree that it would not be just and equitable if contributions
pursuant to this Section 7(d) were to be determined by pro rata allocation (even
if the Agents were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to
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above in this Section 7(d) shall be deemed to include, for purposes of this
Section 7(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7(d), no Agent shall be
required to contribute any amount in excess of the amount by which the total
price at which the Notes sold through such Agent and distributed to the public
were offered to the public exceeds the amount of any damages which such Agent
has otherwise paid or become liable to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
Section 8. Status of Each Agent
In soliciting offers to purchase the Notes from the Company pursuant to
this Agreement (other than in respect of any Purchase Agreement), each Agent is
acting individually and not jointly and is acting solely as agent for the
Company and not as principal. Each Agent will make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose offer to purchase
Notes from the Company has been solicited by such Agent and accepted by the
Company but such Agent shall have no liability to the Company in the event any
such purchase is not consummated for any reason. If the Company shall default in
its obligations to deliver Notes to a purchaser whose offer it has accepted, the
Company shall (i) hold the Agents harmless against any loss, claim or damage
arising from or as a result of such default by the Company, and (ii) in
particular, pay to the Agents any commission to which they would be entitled in
connection with such sale.
Section 9. Representations, Warranties and Obligations to Survive Delivery
The respective indemnities, agreements, representations, warranties and
other statements of the Company and the Agents contained in this Agreement, or
made by or on behalf of them, respectively, pursuant to this Agreement, shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of any Agent or any person controlling such Agent or by or
on behalf of the Company, and shall survive each delivery of and payment for any
of the Notes.
Section 10. Termination
This Agreement may be terminated for any reason with respect to any party
hereto, at any time, by any party hereto upon the giving of one day's written
notice of such termination to the other parties hereto; provided, however, if
such terminating party is an Agent, such termination shall be effective only
with respect to such terminating party. If, at the time of a termination, an
offer to purchase any of the Notes has been accepted by the Company but the time
of delivery to the purchaser has not occurred, the provisions of this Agreement
shall remain in effect until such Notes are delivered. The provisions of
Sections 2(c), 3(d), 3(h), 3(i), 4, 7, 8 and 9 hereof shall survive any
termination of this Agreement.
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Section 11. Sales of Notes Denominated in a Foreign Currency and Indexed
Notes
If at any time the Company and any of the Agents shall determine to issue
and sell Notes denominated in a currency or currency unit other than U.S.
Dollars, which other currency may include a composite currency, or with respect
to which an index is used to determine the amounts of payments of principal and
any premium or interest, the Company and any such Agent shall execute and
deliver an Amendment (a "Foreign Currency Amendment" or "Indexed Note
Amendment," as the case may be) in the form attached hereto as Exhibit D. Such
amendment shall establish, as appropriate additions and modifications that shall
apply to the sales, whether offered on an agency or principal basis, of the
Notes covered thereby. The Agents are authorized to solicit offers to purchase
Notes with respect to which an index is used to determine the amounts of
payments of principal and any premium and interest, and the Company shall agree
to any sales of such Notes (whether offered on an agency or principal basis),
only in a minimum aggregate amount of $2,500,000.
Section 12. Notices
Except as otherwise provided herein, all notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Agents shall be directed to them as follows: Lehman Brothers Inc., 3 World
Financial Center, New York, New York 10285-1200, Attention: Medium Term Note
Department, 12th Floor, Telephone No.: (212) 526-2040, Telecopy No.: (212) 528-
1718; Chase Securities, Inc., 1 Chase Manhattan Plaza - 15th Floor, New York,
New York 10081, Attention: Medium-Term Note Desk, Telephone No.: (212) 552-2969,
Telecopy No.: (212) 552-1507; Goldman, Sachs & Co., MTN Desk, 85 Broad Street,
New York, New York 10004, Attention: Karen Robertson, Telephone No.: (212) 902-
1482, Telecopy No.: (212) 902-6658; Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, World Financial Center, North Tower, 10th Floor,
New York, New York 10281-1310, Attention: MTN Product Management, Telephone No.:
(212) 449-7476, Telecopy No.: (212) 449-2234; notices to the Company shall be
directed to it as follows: Alco Capital Resource, Inc., c/o Alco Standard
Corporation, 825 Duportail Road, Wayne, PA 19087, Attention: Kathleen Burns,
Telephone No.: (610) 296-8000, Telecopy No.: (610) 296-8419.
Section 13. Binding Effect; Benefits
This Agreement shall be binding upon each Agent, the Company, and their
respective successors. This Agreement and the terms and provisions hereof are
for the sole benefit of only those persons, except that (a) the representations,
warranties, indemnities and agreements of the Company contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control any Agent within the meaning of Section 15 of the Act, and
(b) the indemnity agreement of the Agents contained in Section 7 hereof shall be
deemed to be for the benefit of directors of the Company, officers of the
Company who have signed the Registration Statement and any person controlling
the Company. Nothing in this Agreement is intended or shall be construed to give
any persons other than the person referred to in this Section, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
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Section 14. Governing Law; Counterparts
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York. This Agreement may be executed in counterparts
and the executed counterparts shall together constitute a single instrument.
Section 15. Paragraph Headings
The paragraph headings used in this Distribution Agreement are for
convenience of reference only, and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
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If the foregoing correctly sets forth our agreement, please indicate your
acceptance hereof in the space provided for that purpose below.
Very truly yours,
ALCO CAPITAL RESOURCE, INC.
By:________________________________
Authorized Signatory
CONFIRMED AND ACCEPTED
as of the date first above written:
LEHMAN BROTHERS INC.
By:___________________________
Authorized Signatory
CHASE SECURITIES, INC.
By:___________________________
GOLDMAN, SACHS & CO.
By:__________________________
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:___________________________
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Exhibit A
ALCO CAPITAL RESOURCE, INC.
Medium-Term Notes, Series B
SCHEDULE OF PAYMENTS
The Company agrees to pay each Agent a commission equal to the following
percentage of the aggregate U.S. dollar equivalent of the principal amount of
Notes sold by it:
<TABLE>
<CAPTION>
Term Commission Rate
<S> <C>
9 months to less than 12 months .125%
12 months to less than 18 months .150%
18 months to less than 2 years .200%
2 years to less than 3 years .250%
3 years to less than 4 years .350%
4 years to less than 5 years .450%
5 years to less than 6 years .500%
6 years to less than 7 years .550%
7 years to less than 10 years .600%
10 years to less than 15 years .625%
15 years to less than 20 years .650%
20 years to 30 years .750%
More than 30 years Determined at time of issue
</TABLE>
<PAGE>
Exhibit B
ALCO CAPITAL RESOURCE, INC.
Medium-Term Notes, Series B
Administrative Procedures
Medium-Term Notes, Series B, with maturities of nine months or more
from date of issue (the "Notes") are to be offered on a continuing basis by Alco
Capital Resource, Inc. (the "Company"). Lehman Brothers Inc., Goldman, Sachs &
Co., Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated and
Chase Securities, Inc., as agents (each an "Agent" and collectively, the
"Agents", which shall include Lehman Special Securities Inc., an affiliate of
Lehman Brothers Inc.), have each agreed to use their reasonable best efforts to
solicit offers to purchase the Notes. The Notes are being sold pursuant to a
Distribution Agreement between the Company and the Agents dated ______, 1995 (as
it may be supplemented or amended from time to time, the "Distribution
Agreement") to which these administrative procedures are attached as an exhibit.
The Notes will be issued under the Company's Indenture, dated as of _______,
1995 between the Company and Chemical Bank, as trustee (the "Trustee"), as
heretofore supplemented. The Notes will rank equally with all other unsecured
and unsubordinated indebtedness of the Company and will have been registered
with the Securities and Exchange Commission (the "Commission"). Terms defined in
the Prospectus relating to the Notes (the "Prospectus," which term shall include
any Prospectus Supplement relating to the Notes and any Pricing Supplement
relating to an applicable Note) and in the Distribution Agreement shall have the
same meaning when used in this exhibit.
The Notes will be issued either (a) in certificated form (each, a
"Certificated Note") delivered to the purchaser thereof or a person designated
by such purchaser or (b) in book-entry form (each, a "Book-Entry Note")
represented by one or more fully registered global Notes (each, a "Global
Security") delivered to the Trustee, as agent for The Depository Trust Company
("DTC"), and recorded in the book-entry system maintained by DTC. Owners of
beneficial interests in Book-Entry Notes will be entitled to physical delivery
of Certificated Notes equal in principal amount to their respective beneficial
interests only in certain limited circumstances described in the Prospectus.
General procedures relating to the issuance of all Notes are set forth
in Part I hereof. Certificated Notes will be issued in accordance with the
procedures set forth in Part II, as supplemented, in the case of Certificated
Notes denominated other than in U.S. dollars ("Multi-Currency Notes"), by Part
III. Book-Entry Notes will be issued in accordance with the procedures set forth
in Part IV.
Administrative responsibilities, document control and record-keeping
functions to be performed by the Company will be performed by its Treasurer.
Administrative procedures for the offering are explained below.
PART I: Procedures of General Applicability
Price to Public
Each Note will be issued at 100% of principal amount, unless otherwise
determined by the Company.
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Date of Issuance
Each Note will be dated and issued as of the date of its authentication by
the Trustee.
Maturities
Each Note will mature on a day at least nine months or more from the date
of issuance selected by the purchaser and agreed upon by the Company. Each
Floating Rate Note (as defined below) will mature on an Interest Payment Date
(as defined below).
Registration
Notes will be issued only in fully registered form as either a Book-Entry
Note or a Certificated Note.
Interest Payments
Each Note bearing interest at a fixed rate (a "Fixed Rate Note") will
bear interest from its issue date at the annual rate stated on the face thereof,
payable in the case of Fixed Rate Notes other than Amortizing Notes, unless
otherwise specified in an applicable Pricing Supplement, on June 15 and December
15 of each year (each an "Interest Payment Date" with respect to such Fixed Rate
Note) and at Stated Maturity or upon redemption, if applicable.
Special provisions are set forth in the Prospectus relating to Notes
bearing interest at a rate or rates determined by reference to an interest rate
formula ("Formula Rate Notes") at a rate determined pursuant to the formula
stated on the face thereof, payable in arrears on such dates as are specified
therein (each an "Interest Payment Date" with respect to such Floating Rate
Note).
Unless otherwise specified in an applicable Pricing Supplement,
interest on Fixed Rate Notes will be calculated and paid on the basis of a 360-
day year of twelve 30-day months. Unless otherwise specified in an applicable
Pricing Supplement, interest will be payable to the person in whose name such
Note is registered at the close of business on May 31 or November 30 (whether or
not a Business Day) with respect to Fixed Rate Notes other than Amortizing Notes
(as hereinafter defined) or the fifteenth day (whether or not a Business Day)
next preceding an Interest Payment Date with respect to Floating Rate Notes (the
"Record Dates"); provided, however, that interest payable at Stated Maturity
will be payable to the person to whom principal shall be payable. Payments of
principal and interest on Notes for which payments of principal and interest are
made in equal installments over the life of the security ("Amortizing Notes")
will be made either quarterly on each March 15, June 15, September 15 and
December 15 or semiannually on each June 15 and December 15 as set forth in the
applicable Pricing Supplement, and at maturity or upon earlier redemption or
repayment. Payments with respect to Amortizing Notes will be applied first to
interest due and payable thereon and then to the reduction of the unpaid
principal amount thereof. A table setting forth repayment information in respect
of each Amortizing Note will be provided to the original purchaser and will be
available, upon request, to subsequent Holders. Any payment of principal and
interest on any such Note required to be paid on an Interest Payment Date or at
Stated Maturity or upon redemption, if applicable, which is not a Business
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Day shall be postponed to the next day which is a Business Day. The first
payment of interest on any Note originally issued between a Record Date and an
Interest Payment Date will be made on the Interest Payment Date following the
next succeeding Record Date. All interest payments (and, in the case of
Amortizing Notes, principal payments) excluding interest payments and, in the
case of Amortizing Notes, principal payments made at Stated Maturity or upon
redemption, if applicable, will be made by check mailed to the person entitled
thereto as provided above, or, at the option of the Company, by wire transfer to
an account maintained by such person with a bank located in the United States.
Notwithstanding the foregoing, the holder of $10 million or more in aggregate
principal amount of Notes of like tenor and terms with the same Interest Payment
Date may request payment by wire transfers.
On the fifth Business Day immediately preceding each Interest Payment
Date, the Trustee will furnish the Company with the total amount of the interest
payments and, in the case of Amortizing Notes, principal payments, to be made on
such Interest Payment Date. The Trustee (or any duly selected paying agent) will
provide monthly to the Company's Treasury Department a list of the principal and
interest to be paid on Notes maturing in the next succeeding month. The Company
will provide to the Trustee not later than the payment date sufficient moneys to
pay in full all principal and interest payments due on such payment date. The
Trustee will assume responsibility for withholding taxes on interest paid as
required by law.
Acceptance and Rejection of Offers
The Company shall have the sole right to accept offers to purchase
Notes and may reject any such offer in whole or in part. Each Agent shall
promptly communicate to the Company, orally or in writing, each reasonable offer
to purchase Notes from the Company received by it other than those rejected by
such Agent. Each Agent shall have the right, in its discretion reasonably
exercised without advising the Company, to reject any offers in whole or in
part.
Settlement
The receipt of immediately available funds in U.S. dollars by the
Company in payment for a Note (less the applicable commission) and the
authentication and issuance of such Note shall, with respect to such Note,
constitute "Settlement." All offers accepted by the Company will be settled (i)
for trades occurring from the date hereof to and including June 2, 1995, on the
fifth Business Day next succeeding the date of acceptance by the Company, (ii)
for trades occurring on June 5, 1995 and June 6, 1995, on the fourth Business
Day next succeeding such date of acceptance and (iii) for trades occurring on or
after June 7, 1995, on the third Business Day next succeeding such date of
acceptance pursuant to the timetable for Settlement set forth below unless
otherwise agreed to by the Company and the purchaser; provided, however, that
the Company will so notify the Trustee of any such other date on or before the
Business Day immediately prior to the Settlement date.
Procedures for Establishing the Terms of the Notes
The Company and the Agents will discuss from time to time the rates to
be borne by the Notes that may be sold as a result of the solicitation of offers
by the Agents. Once any Agent has recorded any indication of interest in Notes
upon certain terms, and communicated with the Company, if the Company
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accepts an offer to purchase Notes upon such terms, it will prepare a Pricing
Supplement in the form previously approved by the Agents, reflecting the terms
of such Notes and, after approval from the Presenting Agent, will arrange to
have 10 copies of such Pricing Supplement (together with the Prospectus, if
amended or supplemented) filed with the Commission and will supply an
appropriate number of copies of the Prospectus, as then amended or supplemented,
together with such Pricing Supplement, to the Presenting Agent. See "Delivery of
Prospectus." No settlements with respect to Notes upon such terms may occur
prior to such filing and the Presenting Agent will not, prior to such filing,
mail confirmations to customers who have offered to purchase Notes upon such
terms. After such filing, sales, mailing of confirmations and settlements may
occur with respect to Notes upon such terms, subject to the provisions of
"Delivery of Prospectus" below.
If the Company decides to post rates and a decision has been reached
to change interest rates, the Company will promptly notify each Agent. Each
Agent will forthwith suspend solicitation of purchases. At that time, the Agents
will recommend and the Company will establish rates to be so "posted." Following
establishment of posted rates and prior to the filing described in the following
sentence, the Agents may only record indications of interest in purchasing Notes
at the posted rates. Once any Agent has recorded any indication of interest in
Notes at the posted rates and communicated with the Company, if the Company
accepts an offer at the posted rate, it will prepare a Pricing Supplement
reflecting such posted rates and, after approval from the Presenting Agent, will
arrange to have 10 copies of such Pricing Supplement (together with the
Prospectus if amended or supplemented) filed with the Commission and will supply
an appropriate number of copies of the Prospectus, as then amended or
supplemented, to the Presenting Agent. See "Delivery of Prospectus." No
settlements at the posted rates may occur prior to such filing and the
Presenting Agent will not, prior to such filing, mail confirmations to customers
who have offered to purchase Notes at the posted rates. After such filing,
sales, mailing of confirmations and settlements may resume, subject to the
provisions of "Delivery of Prospectus" below.
Suspension of Solicitation; Amendment or Supplement
In the event that at the time the Agents, at the direction of the Company,
suspend solicitation of offers to purchase from the Company there shall be any
orders outstanding which have not been settled, the Company will promptly advise
the Agents and the Trustee whether such orders may be settled and whether copies
of the Prospectus as theretofore amended and/or supplemented as in effect at the
time of the suspension may be delivered in connection with the settlement of
such orders. The Company will have the sole responsibility for such decision and
for any arrangements which may be made in the event that the Company determines
that such orders may not be settled or that copies of such Prospectus may not be
so delivered.
Delivery of Prospectus
A copy of the Prospectus as most recently amended or supplemented on
the date of delivery thereof, together with the applicable Pricing Supplement,
must be delivered to a purchaser prior to or together with the earlier of the
delivery by the Agents of (i) the written confirmation of a sale sent to a
purchaser or his agent and (ii) any Note purchased by such purchaser. The
Company shall ensure that the Presenting Agent receives copies of the Prospectus
and each amendment or supplement thereto (including the applicable Pricing
Supplement) in such quantities and within such time limits as will enable the
Presenting Agent to deliver such confirmation or Note to a purchaser as
contemplated by these
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procedures and in compliance with the preceding sentence. Copies of Pricing
Supplements should be delivered by 11:00 A.M. on the Business Day following the
applicable trade date by telecopy to (i) Lehman Brothers Inc., c/o ADP,
Prospectus Services, 536 Broad Hollow Road, Melville, New York 11747, Attention:
Eric Johnson, Telephone: (516) 254-7106, Telecopy: (516) 249-7942 and by hand to
Lehman Brothers Inc., 3 World Financial Center, 9th Floor, New York, New York
10285-0900, Attention: Brunie Vazquez, Telephone: (212) 526-8400; (ii) Chase
Securities, Inc., One Chase Manhattan Plaza, 15th Floor, New York, New York
10081, Attention: Medium-Term Note Desk, Telephone No.: (212) 552-2969, Telecopy
No.: (212) 552-1507; (iii) Goldman, Sachs & Co., MTN Desk, 85 Broad Street, New
York, New York 10004, Attention: Karen Robertson, Telephone No.: (212) 902-1482,
Telecopy No.: (212) 902-6658; or (iv) Merrill Lynch & Co. - Tritech Services, 4
Corporate Place, Corporate Park 287, Piscataway, New Jersey 08854; Attention:
Final Prospectus Unit/Nachman Kimerling, Telephone No.: (908) 878-6525/26/27,
Telecopy No.: (908) 878-6530; also, for record keeping purposes, send a copy to:
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith, Incorporated,
Merrill Lynch World Headquarters, World Financial Center, North Tower 10th
Floor, 250 Vesey Street, New York, New York 10281-1310, Attention: MTN Product
Management. If, since the date of acceptance of a purchaser's offer, the
Prospectus shall have been supplemented solely to reflect any sale of Notes on
terms different from those agreed to between the Company and such purchaser or a
change in posted rates not applicable to such purchaser, such purchaser shall
not receive the Prospectus as supplemented by such new supplement, but shall
receive the Prospectus as supplemented to reflect the terms of the Notes being
purchased by such purchaser and otherwise as most recently amended or
supplemented on the date of delivery of the Prospectus. The Company will make
all such deliveries with respect to all Notes sold directly by the Company.
Redemption and Repayment
Unless one or more Redemption Dates are specified in the applicable
Pricing Supplement, the Notes will not be redeemable prior to their Stated
Maturity. If one or more Redemption Dates are so specified with respect to any
Note, the applicable Pricing Supplement will also specify one or more redemption
prices (expressed as a percentage of the principal amount of such Note)
("Redemption Prices") and the redemption period or periods ("Redemption
Periods") during which such Redemption Prices shall apply. Unless otherwise
specified in the Pricing Supplement, any such Note shall be redeemable at the
option of the Company at the specified Redemption Price applicable to the
Redemption Period during which such Note is to be redeemed, together with
interest accrued to the Redemption Date. Unless otherwise specified in the
applicable Pricing Supplement, the Notes will not be subject to any sinking
fund. The Company may redeem any of the Notes that are redeemable and remain
outstanding either in whole or from time to time in part, upon not less than 30
nor more than 60 days' notice. In the event of a redemption in part of any Note,
a new Note for the amount of the unredeemed portion shall be issued in the name
of the Holder upon cancellation of the redeemed Note.
The Pricing Supplement relating to each Note will indicate either that
such Note cannot be repaid prior to Stated Maturity or that such Note will be
repayable at the option of the holder on a date or dates specified prior to
Stated Maturity at a price or prices set forth in the applicable Pricing
Supplement, together with accrued interest to the date of repayment.
In order for a Note that is subject to repayment at the option of the
Holder to be repaid, the Paying Agent must receive at least 30 days but not more
than 45 days prior to the repayment date (a) appropriate wire instructions and
(b) either (i) the Note with the form entitled "Option to Elect
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Repayment" attached to the Note duly completed or (ii) a telegram, telex,
facsimile transmission or letter from a member of a national securities exchange
or the National Association of Securities Dealers, Inc. or a commercial bank or
trust company in the United States setting forth the name of the Holder of the
Note, the principal amount of the Note, the portion of the principal amount of
the Notes to be repaid, the certificate number or a description of the tenor and
terms of the Note, a statement that the option to elect repayment is being
exercised thereby and a guarantee that the Note to be repaid with the form
entitled "Option to Elect Repayment" attached to the Note duly completed will be
received by the Paying Agent not later than five Business Days after the date of
such telegram, telex, facsimile transmission or letter and such Note and form
duly completed must be received by the Paying Agent by such fifth Business Day.
Exercise of the repayment option by the Holder of a Note shall be irrevocable,
except as otherwise described under "Interest Rate Reset" and "Extension of
Maturity" in the Prospectus Supplement. The repayment option may be exercised by
the Holder of a Note for less than the entire principal amount of the Note
provided that the principal amount of the Note remaining outstanding after
repayment is an authorized denomination. No transfer or exchange of any Note
(or, in the event that any Note is to be repaid in part, the portion of the Note
to be repaid) will be permitted after exercise of a repayment option. All
questions as to the validity, eligibility (including time of receipt) and
acceptance of any Note for repayment will be determined by the Company, whose
determination will be final, binding and non-appealable.
If a Note is represented by a Global Security, the Depositary's
nominee will be the Holder of such Note and therefore will be the only entity
that can exercise a right to repayment. In order to ensure that the Depositary's
nominee will timely exercise a right to repayment with respect to a particular
Note, the beneficial owner of such Note must instruct the broker or other direct
or indirect participant through which it holds an interest in such Note to
notify the Depositary of its desire to exercise a right to repayment. Different
firms have different cut-off times for accepting instructions from their
customers and, accordingly, each beneficial owner should consult the broker or
other direct or indirect participant through which it holds an interest in a
Note in order to ascertain the cut-off time by which such an instruction must be
given in order for timely notice to be delivered to the Depositary.
Unless otherwise specified in the applicable Pricing Supplement, if a Note
is an Original Issue Discount Note, the amount payable on such Note in the event
of redemption or repayment prior to its Stated Maturity shall be the Amortized
Face Amount of such Note, as specified in the applicable Pricing Supplement, as
of the Redemption Date or the date of repayment, as the case may be.
Authenticity of Signatures
The Company will cause the Trustee to furnish the Agents from time to
time with the specimen signatures of each of the Trustee's officers, employees
and agents who have been authorized by the Trustee to authenticate Notes, but
the Agents will have no obligation or liability to the Company or the Trustee in
respect of the authenticity of the signature of any officer, employee or agent
of the Company or the Trustee on any Note.
Advertising Costs
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The Company will determine with the Agents the amount and nature of
advertising that may be appropriate in offering the Notes. Advertising expenses
incurred with the consent of the Company will be paid by the Company.
Business Day
"Business Day" shall mean, with respect to any particular location,
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions and trust companies in such location are authorized or
required by law, regulation or executive order to close and, with respect to
Notes as to which LIBOR is an applicable Base Rate, is also a London Banking Day
(as defined in the Prospectus).
PART II: Procedures For Certificated Notes
Currency
Certificated Notes will be denominated in U.S. dollars or in one or more
foreign currencies or foreign currency units, as specified in the applicable
Pricing Supplement. For special procedures relating to Multi-Currency Notes, see
Part III hereof.
Registration
Certificated Notes may be presented for registration of transfer or
exchange at the Trustee's drop facility in The City of New York.
Denominations
Except as provided in the applicable Pricing Supplement, Certificated
Notes will be issued and payable in U.S. dollars in the denomination of $1,000
and any larger denomination which is an integral multiple of $1,000.
Maturity
Upon presentation of each Certificated Note at Maturity the Trustee
(or any duly appointed Paying Agent) will pay the principal amount thereof,
together with accrued interest due at maturity. Such payment shall be made in
immediately available funds in U.S. dollars, provided that the Certificated Note
is presented to the Trustee (or any such Paying Agent) in time for the Trustee
(or such Paying Agent) to make payments in such funds in accordance with its
normal procedures. The Company will provide the Trustee (and any such Paying
Agent) with funds available for immediate use for such purpose. Certificated
Notes presented at Maturity will be cancelled by the Trustee as provided in the
Indenture.
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Settlement Procedures
In the event of a purchase of Certificated Notes by an Agent, as principal,
appropriate Settlement details will be as set forth below unless such details
are set forth in the applicable Purchase Agreement to be entered into between
such Agent and the Company pursuant to the Distribution Agreement.
In the event of the sale of a Certified Note that is a Multi-Currency
Note or an Indexed Note, whether the sale is through an Agent or to an Agent, as
principal, additional or different Settlement details may be set forth in an
amendment to these administrative procedures to be entered into between such
Agent and the Company.
Other than as contemplated above, settlement procedures with regard to
each Certificated Note sold through each Agent shall be as follows:
A. Such Agent (the "Presenting Agent") will advise the Company by
telephone, telex or facsimile, of the following Settlement information:
1. Exact name in which the Note is to be registered ("Registered
Owner").
2. Exact address of the Registered Owner and address for payment of
principal and interest, if any.
3. Taxpayer identification number of the Registered Owner.
4. Principal amount of the Note (and, if multiple Notes are to be
issued, denominations thereof).
5. Settlement date.
6. Stated Maturity and, if the Company has the option to extend the
Stated Maturity, the Extension Periods and the Final Maturity Date.
7. Issue Price and any OID information.
8. Trade Date/Original Issue Date.
9. If such Note is a Fixed Rate Note, whether such Note is an
Amortizing Note.
10. Interest rate (including, if appropriate, such interest rate
information applicable to any Extension Period):
(a) Fixed Rate Certificated Notes:
(i) interest rate
(ii) interest payment dates, if other than as specified above
(iii) date or dates, if any, on which the interest rate may be
reset and the basis or formula, if any, for such
resetting
(iv) overdue rate, if any
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(b) Floating Rate Certificated Notes:
(i) interest rate basis
(ii) initial interest rate
(iii) spread or spread multiplier, if any
(iv) date or dates, if any, on which the spread or spread
multiplier may be reset and the basis or formula, if any,
for such resetting
(v) interest rate reset periods
(vi) interest payment dates
(vii) index maturity
(viii) maximum and minimum interest rates, if any
(ix) record dates
(x) interest determination dates
(xi) overdue rate, if any
11. The date on or after which the Certificated Notes are redeemable at
the option of the Company or are to be repaid at the option of the
Holder, and additional redemption or repurchase provisions, if any.
12. Wire transfer information.
13. Presenting Agent's commission (to be paid in the form of a discount
from the proceeds remitted to the Company upon Settlement).
14. That the Note will be a Certificated Note.
B. The Company will confirm the above Settlement information to the Trustee
by telephone, telex or facsimile, and the Trustee will assign a Note number to
the transaction. If the Company rejects an offer, the Company will promptly
notify the Presenting Agent and the Trustee by telephone.
C. The Trustee will complete the first page of the preprinted 4-ply
Certificated Note packet, the form of which was previously approved by the
Company, the Agents and the Trustee.
D. The Trustee will deliver the Certificated Note (with the attached white
confirmation) and the yellow and blue stubs to the Presenting Agent at one of
the following addresses: (i) Lehman Government Securities Inc., One Battery Park
Plaza, 2nd Floor, New York, New York 10004, Attention: Eddie Steffens; (ii)
Chase Securities, Inc., One Chase Manhattan Plaza, Level 4B, Window 11, New
York, New York 10081, Attention: Receive and Deliver; (iii) Goldman, Sachs &
Co., 85 Broad Street, 6th Floor, New York, New York 10004, Attention: Edward
Bissoth; or Merrill Lynch, Pierce, Fenner & Smith Incorporated, Money Market
Clearance -MTNs, 75 Barclay Street, Window C, New York, New York 10080,
Attention: Kevin Brennan. The Presenting Agent will acknowledge receipt of the
Certificated Note by completing the yellow stub and returning it to the Trustee.
E. The Presenting Agent will cause to be wire transferred to a bank account
designated by the Company immediately available funds in U.S. dollars in the
amount of the principal amount of the Certificated Note, less the applicable
commission or discount, if any.
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F. The Presenting Agent will deliver the Certificated Note (with the white
confirmation) to the purchaser against payment in immediately available funds in
the amount of the principal amount of the Certificated Note. The Presenting
Agent will deliver to the purchaser a copy of the most recent Prospectus
applicable to the Certificated Note with or prior to any written offer of
Certificated Notes, delivery of the Certificated Note and the confirmation and
payment by the purchaser for the Certificated Note.
G. The Presenting Agent will obtain the acknowledgment of receipt for the
Certificated Note and Prospectus by the purchaser through the purchaser's
completion of the blue stub.
H. The Trustee will mail the pink stub to the Company's Treasurer.
Settlement Procedures Table
For offers to purchase Certificated Notes accepted by the Company,
Settlement procedures "A" through "H" set forth above shall be completed on or
before the respective times set forth below:
<TABLE>
<CAPTION>
Settlement
Procedure Time (New York)
<S> <C>
A 5 PM on the Trade Date
B 3 PM on the Business Day prior to Settlement Date
C-D 12 Noon on the Settlement Date
E 2:15 PM on the Settlement Date
F-G 3 PM on the Settlement Date
H 5 PM on the Business Day after the Settlement Date
</TABLE>
Fails
In the event that a purchaser of a Certificated Note shall either fail to
accept delivery of or make payment for such Certificated Note on the date fixed
by the Company for Settlement, the Presenting Agent will immediately notify the
Trustee and the Company's Treasurer by telephone, confirmed in writing, of such
failure and return the Certificated Note to the Trustee. Upon the Trustee's
receipt of the Certificated Note from the Presenting Agent, the Company will
promptly return to the Presenting Agent an amount of immediately available funds
in U.S. dollars equal to any amount previously transferred to the Company in
respect of the Certificated Note pursuant to advances made by the Agent. Such
returns will be made on the Settlement Date, if possible, and in any event not
later than 12 noon (New York City time) on the Business Day following the
Settlement Date. The Company will reimburse the Presenting Agent on an equitable
basis for its loss of the use of the funds during the period when the funds were
credited to the account of the Company. Upon receipt of the Certificated Note in
respect of which the default occurred, the Trustee will mark the Certificated
Note "cancelled," make appropriate entries in
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its records and deliver the Certificated Note to the Company with an appropriate
debit advice. The Presenting Agent will not be entitled to any commission with
respect to any Certificated Note which the purchaser does not accept or make
payment for.
PART III: Special Administrative Procedures For
Multi-Currency Notes
Unless otherwise set forth in an applicable Foreign Currency Amendment, the
following procedures and terms shall apply to Multi-Currency Notes in addition
to, and to the extent inconsistent therewith in replacement of, the procedures
and terms set forth above.
Denominations
The authorized denominations of any Multi-Currency Note will be the amount
of the Specified Currency for such Multi-Currency Note equivalent, at the noon
buying rate in the City of New York for cable transfers for such Specified
Currency (the "Market Exchange Rate") on the first Business Day in the City of
New York and the country issuing such currency (or, in the case of ECUs,
Brussels) next preceding the date on which the Company accepts the offer to
purchase such Multi-Currency Note, to U.S. $1,000 (rounded down to an integral
multiple of 10,000 units of such Specified Currency) and any greater amount that
is an integral multiple of 10,000 units of such Specified Currency.
Currencies
Unless otherwise specified in the applicable Pricing Supplement, payments
of principal of (and premium, if any) and interest on all Multi-Currency Notes
will be made in the applicable Specified Currency, provided, however, that
payments of principal of (and premium, if any) and interest on Multi-Currency
Notes denominated in other than U.S. dollars will nevertheless be made in U.S.
dollars (i) at the option of the Holders thereof under the procedures described
below and (ii) at the option of the Company in the case of imposition of
exchange controls or other circumstances beyond the control of the Company as
described below.
Payment of Principal and Interest
If so specified in the applicable Pricing Supplement, except as provided in
the next paragraph, payments of interest and principal (and premium, if any)
with respect to any Multi-Currency Note will be made in U.S. dollars if the
Holder of such Note on the relevant Regular Record Date or at Maturity, as the
case may be, has transmitted a written request for such payment in U.S. dollars
to the Trustee at its Corporate Trust Office on or prior to such Regular Record
Date or the date 15 days prior to Maturity, as the case may be. Such request may
be in writing (mailed or hand delivered) or by cable, telex or other form of
facsimile transmission. Any such request made with respect to any Multi-Currency
Note by a Holder will remain in effect with respect to any further payments of
interest and principal (and premium, if any) with respect to such Multi-Currency
Note payable to such Holder, unless such request is revoked on or prior to the
relevant Regular Record Date or the date 15 days prior to Maturity, as the case
may be. Holders of Multi-Currency Notes denominated in other than U.S. dollars
whose Notes are registered
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in the name of a broker or nominee should contact such broker or nominee to
determine whether and how an election to receive payments in U.S. dollars may be
made.
The U.S. dollar amount to be received by a Holder of a Multi-Currency Note
who elects to receive payments in U.S. dollars will be based on the highest bid
quotation in The City of New York received by the Currency Determination Agent
(as defined below) as of noon New York City time on the third Business Day next
preceding the applicable payment date from three recognized foreign exchange
dealers (one of which may be the Currency Determination Agent) for the purchase
by the quoting dealer of the Specified Currency for U.S. dollars for settlement
on such payment date in the aggregate amount of the Specified Currency payable
to all Holders of Multi-Currency Notes electing to receive U.S. dollar payments
and at which the applicable dealer commits to execute a contract. If three such
bid quotations are not available on the third Business Day preceding the date of
payment of principal (and premium, if any) or interest with respect to any such
Multi-Currency Note, such payment will be made in the Specified Currency. All
currency exchange costs associated with any payment in U.S. dollars on any such
Multi-Currency Note will be borne by the Holder thereof by deductions from such
payment. Unless otherwise provided in the applicable Pricing Supplement, Lehman
Brothers Inc. will be the Currency Determination Agent (the "Currency
Determination Agent") with respect to the Multi-Currency Notes.
Payment Currency
If the principal of (and premium, if any) or interest on any Multi-Currency
Note is payable in any currency other than U.S. dollars and such Specified
Currency is not available due to the imposition of exchange controls or other
circumstances beyond the control of the Company, the Company will be entitled to
satisfy its obligations to Holders of the Multi-Currency Notes by making such
payment in U.S. dollars on the basis of the Market Exchange Rate on the last
date such Specified Currency was available (the "Conversion Date"). Any payment
made under such circumstances in U.S. dollars where the required payment is in
other than U.S.dollars will not constitute an Event of Default under the
Indenture.
If payment in respect of a Note is required to be made in any currency unit
(e.g., ECU) and such currency unit is unavailable due to the imposition of
exchange controls or other circumstances beyond the Company's control, then all
payments in respect of such Multi-Currency Note shall be made in U.S. dollars
until such currency unit is again available. The amount of each payment in U.S.
dollars shall be computed on the basis of the equivalent of the currency unit in
U.S. dollars, which shall be determined by the Company or its agent on the
following basis. The component currencies of the currency unit for this purpose
(the "Component Currencies") shall be the currency amounts that were components
of the currency unit as of the Conversion Date for such currency unit. The
equivalent of the currency unit in U.S. dollars shall be calculated by
aggregating the U.S. dollar equivalents of the Component Currencies. The U.S.
dollar equivalent of each of the Component Currencies shall be determined by the
Company or such agent on the basis of the Market Exchange Rate for each such
Component Currency that is available as of the third Business Day prior to the
date on which the relevant payment is due and for each such Component Currency
that is unavailable, if any, as of the Conversion Date for such Component
Currency.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of that currency as a Component
Currency shall be divided or multiplied in the same proportion, if two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency
B-12
<PAGE>
equal to the sum of the amounts of the consolidated Component Currencies
expressed in such single currency. If any Component Currency is divided into two
or more currencies, the amount of the original Component Currency shall be
replaced by the amounts of such two or more currencies, the sum of which shall
be equal to the amount of the original Component Currency.
Outstanding Multi-Currency Notes
For purposes of calculating the principal amount of any Multi-Currency Note
for any purpose under the Indenture, the principal amount of such Multi-Currency
Note at any time Outstanding shall be deemed to be the U.S. dollar equivalent at
the Market Exchange Rate, determined as of the date of the original issuance of
such Multi-Currency Note, of the principal amount of such Multi-Currency Note.
Details for Settlement of Multi-Currency Notes
In addition to the Settlement information specified in "Settlement
Procedures" above, the Presenting Agent shall communicate to the Company in the
manner set forth in "Settlement Procedures" the following information:
1. Specified Currency
2. Denominations
3. Wire transfer and overseas bank account information (if holder has
elected payment in a Specified Currency).
Whether the sale is through an Agent or to the Agent, as principal,
additional or different Settlement details may be set forth in an amendment to
these administrative procedures to be agreed to by the Agent and the Company.
PART IV: Special Administrative Procedures for Book-Entry Notes
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
or cause to be performed the custodial, document control and administrative
functions described below, in accordance with its respective obligations under a
Letter of Representations from the Company and the Trustee to DTC and a Medium-
Term Note Certificate Agreement previously entered into between the Trustee and
DTC, and its obligations as a participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS"). Except as otherwise set forth in this Exhibit B,
Book-Entry Notes will be issued in accordance with the administrative procedures
set forth below.
Issuance
On any date of settlement (as defined under "Settlement" below) for one or
more Fixed Rate Book-Entry Notes, the Company will issue a single Global
Security in fully registered form without coupons representing up to
$150,000,000 principal amount, or the equivalent thereof in any Specified
Currency, other than U.S. dollars, at the Market Exchange Rate used to determine
the denomination of such Book-
B-13
<PAGE>
Entry Note as described below (rounded down to an integral multiple of 10,000
units of such Specified Currency), of all of such Notes that have the same
original issuance date, interest rate, redemption or repayment provisions and
Stated Maturity. Similarly, on any settlement date for one or more Floating Rate
Book-Entry Notes, the Company will issue a single Global Security representing
up to $150,000,000 principal amount, or the equivalent thereof in any Specified
Currency, other than U.S. dollars, at the Market Exchange Rate used to determine
the denomination of such Book-Entry Note as described below (rounded down to an
integral multiple of 10,000 units of such Specified Currency), of all of such
Notes that have the same interest rate formula, original issuance date, Initial
Interest Rate, Interest Payment Dates, Index Maturity, Spread, Spread
Multiplier, minimum interest rate (if any), maximum interest rate (if any),
redemption or repayment provisions and Stated Maturity. Each Global Security
will be dated and issued as of the date of its authentication by the Trustee.
Each Global Security will have an interest accrual date (the "Interest Accrual
Date"), which will be (i) with respect to an original Global Security (or any
portion thereof), its original issuance date and (ii) with respect to any Global
Security (or portion thereof) issued subsequently upon exchange of a Global
Security or in lieu of a destroyed, lost or stolen Global Security, the most
recent Interest Payment Date to which interest has been paid or duly provided
for on the predecessor Global Security or Securities (or if no such payment or
provision has been made, the original issuance date of the predecessor Global
Security), regardless of the date of authentication of such subsequently issued
Global Security. No Global Security will represent (i) both Fixed Rate and
Floating Rate Book-Entry Notes or (ii) any Certificated Note.
Identification Numbers
The Company will arrange, on or prior to commencement of a program for the
offering of Book-Entry Notes,with the CUSIP Service Bureau of Standard & Poor's
Corporation (the "CUSIP Service Bureau") for the reservation of a series of
CUSIP numbers (including tranche numbers), consisting of approximately 900 CUSIP
numbers and relating to Global Securities representing the Book-Entry Notes. The
Company will obtain a written list of such series of reserved CUSIP numbers and
will deliver to the Trustee and DTC such written list of 900 CUSIP numbers of
such series. The Company will assign CUSIP numbers to Global Securities as
described below under Settlement Procedure "B." DTC will notify the CUSIP
Service Bureau periodically of the CUSIP numbers that the Company has assigned
to Global Securities. When fewer than 100 of the reserved CUSIP numbers remain
unassigned to Global Securities, and if it deems necessary, the Company will
reserve additional CUSIP numbers for assignment to Global Securities
representing Book-Entry Notes. Upon obtaining such additional CUSIP numbers the
Company shall deliver such additional CUSIP numbers to the Trustee and DTC.
Registration
Each Global Security will be registered in the name of Cede & Co., as
nominee for DTC, on the Securities Register maintained under the Indenture
governing such Global Security. The beneficial owner of a Book-Entry Note (or
one or more indirect participants in DTC designated by such owner) will
designate one or more participants in DTC with respect to such Book-Entry Note
(the "Participants") to act as agent or agents for such owner in connection with
the book-entry system maintained by DTC, and DTC will record in book-entry form,
in accordance with instructions provided by such Participants, a credit balance
with respect to such Book-Entry Note in the account of such Participants. The
ownership interest of such beneficial owner in such Book-Entry Note will be
recorded through the records of such
B-14
<PAGE>
Participants or through the separate records of such Participants and one or
more indirect participants in DTC.
Voting
In the event of any solicitation of consents from or voting by holders of
the Book-Entry Notes, the Company or the Trustee shall establish a record date
for such purposes (with no provision for revocation of consents or votes by
subsequent holders) and shall, to the extent possible, send notice of such
record date to DTC not less than 15 calendar days in advance of such record
date.
Transfers
Transfers of a Book-Entry Note will be accomplished by book entries made by
DTC and, in turn, by Participants (and in certain cases, one or more indirect
participants in DTC ) acting on behalf of beneficial transferors and transferees
of such Book-Entry Note.
Consolidation and Exchange
The Trustee may deliver to DTC and the CUSIP Service Bureau at any time a
written notice of consolidation specifying (i) the CUSIP numbers of two or more
Outstanding Global Securities that represent (A) Fixed Rate Book-Entry Notes
having the same original issuance date, interest rate, redemption and repayment
provisions and Stated Maturity and with respect to which interest has been paid
to the same date or (B) Floating Rate Book-Entry Notes having the same interest
rate formula, original issuance date, Initial Interest Rate, Interest Payment
Dates, Index Maturity, Spread or Spread Multiplier, minimum interest rate (if
any), maximum interest rate (if any), redemption and repayment provisions and
with respect to which interest has been paid to the same date, (ii) a date,
occurring at least thirty days after such written notice is delivered and at
least thirty days before the next Interest Payment Date for such Book-Entry
Notes, on which such Global Securities shall be exchanged for a single
replacement Global Security and (iii) a new CUSIP number, obtained from the
Company, to be assigned to such replacement Global Security. Upon receipt of
such a notice, DTC will send to its Participants (including the Trustee) a
written reorganization notice to the effect that such exchange will occur on
such date. Prior to the specified exchange date, the Trustee will deliver to the
CUSIP Service Bureau a written notice setting forth such exchange date and the
new CUSIP number and stating that, as of such exchange date, the CUSIP numbers
of the Global Securities to be exchanged will no longer be valid. On the
specified exchange date, the Trustee will exchange such Global Securities for a
single Global Security bearing the new CUSIP number and a new Interest Accrual
Date, and the CUSIP numbers of the exchanged Global Securities will, in
accordance with CUSIP Service Bureau procedures, be cancelled and not
immediately reassigned. Notwithstanding the foregoing, if the Global Securities
to be exchanged exceed $150,000,000 (or the equivalent thereof in any Specified
Currency other than U.S. dollars at the Market Exchange Rate used to determine
the denomination of such Book-Entry Note as described below (rounded down to an
integral multiple of 10,000 units of such Specified Currency)) in aggregate
principal amount, one Global Security will be authenticated and issued to
represent each $150,000,000 (or the equivalent thereof in any Specified Currency
other than U.S. dollars at the Market Exchange Rate used to determine the
denomination of such Book-Entry Note as described below (rounded down to an
integral multiple of 10,000 units of such Specified Currency)) of principal
amount of the exchanged Global
B-15
<PAGE>
Securities and an additional Global Security will be authenticated and issued to
represent any remaining principal amount of such global Securities (see
"Denominations" below).
Notice of Redemption and Repayment Dates
The Trustee will give notice to DTC prior to each redemption date or
repayment date (as specified in the Book-Entry Note), if any, at the time and in
the manner set forth in the letter of representation.
Denominations
Book-Entry Notes denominated in U.S. dollars will be issued in principal
amounts of $1,000 or any amount in excess thereof that is an integral multiple
of $1,000. The authorized denomination of any Book-Entry Notes denominated in
other than U.S. dollars will be the amount of the Specified Currency for such
Book-Entry Note equivalent, at the Market Exchange Rate on the first Business
Day in the City of New York and the country issuing such currency (or, in the
case of ECUs, Brussels) next preceding the date on which the Company accepts the
offer to purchase such Book-Entry Note, to U.S. $1,000 (rounded down to an
integral multiple of 10,000 units of such Specified Currency) and any greater
amount that is an integral multiple of 10,000 units of such Specified Currency.
Global Securities representing one or more Book-Entry Notes will be denominated
in principal amounts not in excess of $150,000,000, or the equivalent thereof in
any Specified Currency other than U.S. dollars at the Market Exchange Rate used
to determine the denomination of such Book-Entry Note (rounded down to an
integral multiple of 10,000 units of such Specified Currency). If one or more
Book-Entry Notes having an aggregate principal amount in excess of $150,000,000
(or the equivalent thereof in any Specified Currency other than U.S. dollars at
the Market Exchange Rate used to determine the denomination of such Book-Entry
Note down to an integral multiple of 10,000 units of such Specified Currency))
would, but for the preceding sentence, be represented by a single Global
Security, then one Global Security will be issued to represent each $150,000,000
principal amount, or the equivalent thereof in any Specified Currency other than
U.S. dollars at the Market Exchange Rate used to determine the denomination of
such Book-Entry Note (rounded down to an integral multiple of 10,000 units of
such Specified Currency), of such Book-Entry Note or Notes and an additional
Global Security will be issued to represent any remaining principal amount of
such Book-Entry Note or Notes. In such a case, each of the Global Securities
representing such Book-Entry Note or Notes shall be assigned the same CUSIP
number.
Interest
General. Interest on each Book-Entry Note will accrue from the date of
issue of the Global Security representing such Note or from and including the
last date in respect of which interest has been paid or duly provided for. Each
payment of interest on a Book-Entry Note will include interest accrued through
the day preceding, as the case may be, the Interest Payment Date or the date of
Maturity, redemption or repayment; provided, however, that if the Interest Reset
Dates with respect to any such Note are daily or weekly, interest payable on any
Interest Payment Date, other than interest payable on any date on which
principal for such Note is payable, will include interest accrued from the date
of issue of the Global Security, or from and including the last Interest Payment
Date as the case may be, to and including the regular record date immediately
preceding the applicable Interest Payment Date except that at the Stated
Maturity the interest payments will include accrued interest from and including
the date of
B-16
<PAGE>
issue, or from and including the last day in respect of which interest has been
paid or duly provided for, as the case may be, to, but excluding, the Stated
Maturity. Interest payable at the Maturity or upon earlier redemption or
repayment of a Book-Entry Note will be payable to the Person to whom the
principal of such Note is payable. Standard & Poor's Corporation will use the
information received in the pending deposit message described under Settlement
Procedure "C" below in order to include the amount of any interest payable and
certain other information regarding the related Global Security in the
appropriate weekly bond report published by Standard & Poor's Corporation.
Floating Rate Note Notices. On the first Business Day of January, April,
July and October of each year, the Trustee will deliver to the Company and DTC a
written list of Regular Record Dates and Interest Payment Dates that will occur
with respect to Floating Rate Book-Entry Notes during the six-month period
beginning on such first Business Day. Promptly after each Interest Determination
Date (as defined in Appendix A hereto) for Floating Rate Notes, the Company will
notify the Trustee, and the Trustee in turn will notify Standard & Poor's
Corporation, of the interest rates determined on such Interest Determination
Date.
Payments of Principal and Interest
Payments of Interest Only. Promptly after each Regular Record Date, the
Trustee will deliver to the Company and DTC a written notice specifying by CUSIP
number the amount of interest to be paid on each Global Security on the
following Interest Payment Date (other than an Interest Payment Date coinciding
with Maturity or an earlier redemption or repayment date) and the total of such
amounts. DTC will confirm the amount payable on each Global Security on such
Interest Payment Date by reference to the daily bond reports published by
Standard & Poor's Corporation. The Company will pay to the Trustee, as paying
agent, the total amount of interest due on such Interest Payment Date (other
than at Maturity), and the Trustee will pay such amount to DTC at the times and
in the manner set forth below under "Manner of Payment." Promptly after each
Interest Determination Date for Floating Rate Book-Entry Notes, the Calculation
Agent will notify the Trustee and Standard & Poor's Corporation of the interest
rates determined on such Interest Determination Date.
Payments at Maturity or Upon Redemption or Repayment. On or about the first
Business Day of each month, the Trustee will deliver to the Company and DTC a
written list of principal and interest to be paid on each Global Security
maturing either at maturity or any redemption or repayment date in the following
month. The Company, the Trustee and DTC will confirm the amounts of such
principal and interest payments with respect to each such Global Security on or
about the fifth Business Day preceding the Maturity or redemption or repayment
date of such Global Security. The Company will pay to the Trustee, as the paying
agent, the principal amount of such Global Security, together with interest due
at such Maturity or redemption or repayment date, as the case may be. The
Trustee will pay such amount to DTC at the times and in the manner set forth
below under "Manner of Payment."
Promptly after payment to DTC of the principal and interest due at the
Maturity of such Global Security, the Trustee will cancel such Global Security
and deliver it to the Company with an appropriate debit advice. On the first
Business Day of each month, the Trustee will prepare a written statement
indicating the total principal amount of Outstanding Global Securities for which
it serves as paying agent as of the immediately preceding Business Day.
B-17
<PAGE>
Manner of Payment. The total amount of any principal and interest due on
global Securities on any Interest Payment Date or at Maturity or upon redemption
or repayment shall be paid by the Company to the Trustee in funds available for
use by the Trustee as of 9:30 A.M. (New York City time) on such date. The
Company will make such payment on such Global Securities by instructing the
Trustee to withdraw funds from an account maintained by the Company at the
Trustee. For maturity, redemption or any other principal payments: prior to 10
A.M. (New York City time) on such date or as soon as possible thereafter, the
Trustee will make such payments to DTC in same day funds in accordance with
DTC's Same Day Funds Settlement Paying Agent Operating Procedures. For interest
payments: the Trustee will make such payments to DTC in accordance with existing
arrangements between DTC and the Trustee. DTC will allocate such payments to its
Participants in accordance with its existing operating procedures. Neither the
Company, the Trustee (as Trustee or as Paying Agent nor any other Paying Agent)
shall have any direct responsibility or liability for the payment by DTC to such
Participants of the principal of and interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes required under applicable law to
be withheld from any interest payment on a Book-Entry Note will be determined
and withheld by the Participant, indirect participant in DTC or other Person
responsible for forwarding payments and materials directly to the beneficial
owner of such Note.
Settlement Procedures
In the event of a purchase of Book-Entry Notes by an Agent, as principal,
Settlement details will be as set forth below unless such details are set forth
in the applicable Purchase Agreement to be entered into between such Agent and
the Company pursuant to the Distribution Agreement.
In the event of a sale of a Book-Entry Note that is a Multi-Currency Note
or an Indexed Note, whether the sale is through an Agent or to an Agent, as
principal, additional or different Settlement details may be set forth in an
amendment to the administrative procedures to be entered into between the such
Agent and the Company.
Other than as contemplated above, settlement procedures with regard to each
Book-Entry Note sold by the Company through an Agent, as agent, shall be as
follows:
A. The Presenting Agent will advise the Company by telephone, telex or
facsimile, of the following settlement information:
1. Principal amount of the Book-Entry Note (and, if multiple Notes are
to be issued, denominations thereof).
2. Settlement date.
3. Stated Maturity and, if the Company has the option to extend the
Stated Maturity, the Extension Periods and the Final Maturity Date.
4. Issue Price and any OID information.
5. Trade date.
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6. If such Book-Entry Note is a Fixed Rate Note, whether such Note is
an Amortizing Note.
7. The DTC Participant account number of such Agent.
8. Interest rate (including, if appropriate, such interest rate
information applicable to any Extension Period):
(a) Fixed Rate Notes:
(i) interest rate
(ii) interest payment dates, if other than as specified above
(iii) date or dates, if any, on which the interest rate may be
reset and the basis or formula, if any, for such resetting
(iv) overdue rate, if any
(b) Floating Rate Notes:
(i) interest rate basis
(ii) initial interest rate
(iii) spread or spread multiplier, if any
(iv) date or dates, if any, on which the spread or spread
multiplier may be reset and the basis or formula, if any,
for such resetting
(v) interest rate reset periods
(vi) interest payment dates
(vii) index maturity
(viii) maximum and minimum interest rates, if any
(ix) record dates
(x) interest determination dates
(xi) overdue rate, if any
9. The date on or after which the Book-Entry Notes are redeemable at the
option of the Company or are to be repaid at the option of the
Holder, and additional redemption or repurchase provisions, if any.
10. Wire transfer information.
11. Presenting Agent's commission (to be paid in the form of a discount
from the proceeds remitted to the Company upon settlement).
12. That the Note will be a Book-Entry Note.
B. The Company will assign a CUSIP number to the Global Security
representing such Note and then advise the Trustee by telephone (confirmed in
writing at any time on the same date) or electronic transmission of the
information set forth in Settlement Procedure "A" above, such CUSIP number and
the name of such Agent.
C. The Trustee will enter a pending deposit message through DTC's
Participant Terminal System, providing the following settlement information to
DTC, the Presenting Agent, Standard & Poor's
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Corporation and, upon request, the Trustee under the Indenture pursuant to which
such Note is to be issued:
1. The information set forth in Settlement Procedure "A."
2. Identification as a Fixed Rate Book-Entry Note or a Floating Rate
Book-Entry Note.
3. Initial Interest Payment Date for such Note, number of days by
which such date succeeds the related "DTC Record Date" (which term
means the Regular Record Date except in the case of floating rate
notes which reset daily or weekly in which case it means the date
5 calendar days immediately preceding the Interest Payment Date)
and amount of interest payable on such Interest Payment Date.
4. Frequency of interest payments (monthly, semiannually, quarterly,
etc.).
5. CUSIP number of the Global Security representing such Book-Entry
Note.
6. Whether such Global Security will represent any other Book-Entry
Note (to the extent known at such time).
7. The number of Participant accounts to be maintained by DTC on
behalf of the Agents or the Trustee.
D. The Trustee, as Trustee will complete and authenticate the note
certificate evidencing the Global Security representing such Book-Entry Note.
E. DTC will credit such Book-Entry Note to the Trustee's participant
account at DTC.
F. The Trustee will enter an SDFS deliver order through DTC's Participant
Terminal System instructing DTC to (i) debit such Book-Entry Note to the
Trustee's participant account and credit such Note to the Presenting Agent's
participant account and (ii) debit the Presenting Agent's settlement account and
credit the Trustee's settlement account for an amount equal to the price of such
Book-Entry Note less the Presenting Agent's commission.
G. The Presenting Agent will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC (i) to debit such Book-Entry Note to
the Presenting Agent's participant account and credit such Note to the
participant accounts of the Participants with respect to such Book-Entry Note
and (ii) to debit the settlement accounts of such Participants and credit the
settlement account of the Presenting Agent for an amount equal to the price of
such Note.
H. Transfers of funds in accordance with SDFS deliver orders described in
Settlement Procedures "F" and "G" will be settled in accordance with SDFS
operating procedures in effect on the settlement date.
I. The Trustee will credit to an account of the Company maintained at the
Trustee funds available for immediate use in the amount transferred to the
Trustee in accordance with Settlement Procedure "F."
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J. The Presenting Agent will deliver to the purchaser a copy of the most
recent Prospectus applicable to the Book-Entry Note with or prior to any written
offer of Book-Entry Notes and the confirmation and payment by the purchaser of
the Book-Entry Note.
The Presenting Agent will confirm the purchase of such Book-Entry Note to
the purchaser either by transmitting to the Participants with respect to such
Book-Entry Note a confirmation order or orders through DTC's institutional
delivery system or by mailing a written confirmation to such purchaser.
Settlement Procedures Timetable
For offers to purchase Book-Entry Notes solicited by an Agent, as agent,
and accepted by the Company for settlement, Settlement Procedures "A" through
"J" set forth above shall be completed as soon as possible but not later than
the respective times (New York City time) set forth below:
<TABLE>
<CAPTION>
Settlement
Procedures Time
<S> <C>
A-B 11:00 A.M. on the Sale date
C 2:00 P.M. on the Sale date
D 3:00 P.M. on date before Settlement date
E 10:00 A.M. on Settlement date
F-G 2:00 P.M. on Settlement date
H 4:45 P.M. on Settlement date
I-J 5:00 P.M. on Settlement date
</TABLE>
If a sale is to be settled more than one Business Day after the sale date,
Settlement Procedures "A," "B" and "C" shall be completed as soon as practicable
but no later than 11:00 A.M., 11:00 A.M. and 2:00 P.M., as the case may be, on
the first Business Day after the sale date. If the initial interest rate for a
Floating Rate Book-Entry Note has not been determined at the time that
Settlement Procedure "A" is completed, Settlement Procedures "B" and "C" shall
be completed as soon as such rate has been determined but not later than 11:00
A.M. and 12:00 Noon, respectively, on the second Business Day before the
settlement date. Settlement Procedure "I" is subject to extension in accordance
with any extension of Fedwire closing deadlines and in the other events
specified in the SDFS operating procedures in effect on the settlement date.
If settlement of a Book-Entry Note is rescheduled or canceled, the Trustee
will deliver to DTC, through DTC's Participant Terminal System, a cancellation
message to such effect by no later than 2:00 P.M. on the Business Day
immediately preceding the scheduled settlement date.
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Failure To Settle
If the Trustee fails to enter an SDFS deliver order with respect to a Book-
Entry Note pursuant to Settlement Procedure "F," the Trustee may deliver to DTC,
through DTC's Participant Terminal System, as soon as practicable a withdrawal
message instructing DTC to debit such Book-Entry Note to the Trustee's
participant account. DTC will process the withdrawal message, provided that the
Trustee's participant account contains a principal amount to be debited. If a
withdrawal message is processed with respect to all the Book-Entry Notes
represented by a Global Security, the Trustee will mark such Global Security
"canceled," make appropriate entries in the Trustee's records and send such
canceled Global Security to the Company. The CUSIP number assigned to such
Global Security shall, in accordance with CUSIP Service Bureau procedures, be
canceled and not immediately reassigned, If a withdrawal message is processed
with respect to one or more, but not all, of the Book-Entry Notes represented by
a Global Security, the Trustee will exchange such Global Security for two Global
Securities, one of which shall represent such Book-Entry Note or Notes and shall
be canceled immediately after issuance and the other of which shall represent
the other Book-Entry Notes previously represented by the surrendered Global
Security and shall bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Note is not timely paid to the
Participants with respect to such Book-Entry Note by the beneficial purchaser
thereof (or a Person, including an indirect participant in DTC, acting on behalf
of such purchaser), such Participants and, in turn, the Agent for such Book-
Entry Note may enter SDFS deliver orders through DTC's Participant Terminal
System reversing the orders entered pursuant to Settlement Procedures "F" and
"G," respectively. Thereafter, the Trustee will deliver the withdrawal message
and take the related actions described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure to settle with respect to a
Book-Entry Note, DTC may take any actions in accordance with its SDFS operating
procedures then in effect. In the event of a failure to settle with respect to
one or more, but not all, of the Book-Entry Notes to have been represented by a
Global Security, the Trustee will provide, in accordance with Settlement
Procedure "D," for the authentication and issuance of a Global Security
representing the other Book-Entry Notes to have been represented by such Global
Security and will make appropriate entries in its records.
B-22
<PAGE>
Exhibit C
PURCHASE AGREEMENT
ALCO CAPITAL RESOURCE, INC. [Date]
1738 Bass Road
Macon, Georgia 31210
Attention: Treasurer
The undersigned agrees to purchase the following principal amount of the
Notes described in the Distribution Agreement dated ______, 1995 (as it may be
supplemented or amended from time to time, the "Distribution Agreement"):
Principal Amount: $__________
Specified Currency:
Denominated and Indexed Currencies:
Interest Rate: ____%
Discount: ____% of Principal Amount
Aggregate Price to be Paid to $__________
Company (in immediately available
Funds):
Settlement Date:
Other Terms:
Terms defined in the Prospectus relating to the Notes and in the
Distribution Agreement shall have the same meaning when used herein.
[In the case of Notes issued in a Specified Currency other than U.S.
dollars, payments of principal of (and premium, if any) and interest on all
Notes will be made in the applicable Specified Currency, provided, however, that
payments of principal of (and premium, if any) and interest on Notes denominated
in other than U.S. dollars will nevertheless be made in U.S. dollars (i) at the
option of the Holders thereof; (ii) at the option of the Company in the case of
imposition of exchange controls or other circumstances beyond the control of the
Company as described below; or (iii) if so specified in the applicable Pricing
Supplement.
The U.S. dollar amount to be received by a Holder of a Note denominated in
other than U.S. dollars who elects to receive payments in U.S. dollars will be
based on the highest bid quotation in The City of New York received by the
Currency Determination Agent (as defined below) as of noon New York City time on
the third Business Day next preceding the applicable payment date from three
recognized foreign exchange dealers (one of which may be the Currency
Determination Agent) for the purchase by the quoting dealer of the Specified
Currency for U.S. dollars for settlement on such payment date in the aggregate
amount of the Specified Currency payable to all Holders of Notes electing to
receive U.S. dollar payments and at which the applicable dealer commits to
execute a contract. If three such bid quotations are not available on the third
Business Day preceding the date of payment of principal (and premium, if any) or
interest with respect to any Note, such payment will be made in the Specified
<PAGE>
Currency. All currency exchange costs associated with any payment in U.S.
dollars on any such Note will be borne by the Holder thereof by deductions from
such payment.]
Our obligation to purchase Notes hereunder is subject to the continued
accuracy of your representations and warranties contained in the Distribution
Agreement and to your performance and observance of all applicable covenants and
agreements contained therein, including, without limitation, your obligations
pursuant to Section 7 thereof. Our obligation hereunder is subject to the
further condition that we shall receive (a) the opinions required to be
delivered pursuant to Sections 5(e) and 5(h) of the Distribution Agreement, (b)
the certificate required to be delivered pursuant to Section 5(f) of the
Distribution Agreement, (c) the letter referred to in Section 5(g) of the
Distribution Agreement in each case dated as of the above Settlement Date and
(d) [insert other conditions as appropriate].
In further consideration of our agreement hereunder, you agree that between
the date hereof and the above Settlement Date, you will not offer or sell, or
enter into any agreement to sell, any debt securities of the Company [, other
than borrowings under your revolving credit agreements and lines of credit, the
private placement of securities and issuances of your commercial paper].
We may terminate this Agreement, immediately upon notice to you, at any
time prior to the Settlement Date, if prior thereto there shall have occurred:
(i) any change, or any development involving a prospective change, in or
affecting the general affairs, management, shareholder's equity, business,
properties, condition (financial or other), results of operations or prospects
of the Company which in our opinion materially impairs the investment quality of
the Notes; (ii) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or the
over-the-counter market, or the establishment of minimum prices on such
exchanges or such markets; (iii) a general moratorium on commercial banking
activities declared by Federal or New York State authorities; (iv) any
downgrading in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization," as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the Act or any public
announcement that any such organization has under surveillance or review its
rating of any debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war by
Congress or any other substantial national calamity or emergency; or (vi) any
material adverse change in the existing financial, political or economic
conditions in the United States, including the effect of international
conditions on the financial markets in the United States, or you are unable to
provide any of the opinions, certificates or letters referred to in the second
preceding paragraph. In the event of such termination, no party shall have any
liability to the other party hereto, except as provided in Sections 4, 7 and 13
of the Distribution Agreement.
C-2
<PAGE>
This Agreement shall be governed by and construed in accordance with the
laws of New York.
[Insert Name[s] of Agent[s]]
By:________________________________
[Title]
Accepted: ,
ALCO CAPITAL RESOURCE, INC.
By:________________________________
[Authorized Signatory]
C-3
<PAGE>
Exhibit D
[INDEXED NOTE]
AMENDMENT NO.____
TO DISTRIBUTION AGREEMENT DATED_______, 1995, AS AMENDED
[Insert Title of the Denominated
and Indexed Currencies]
The undersigned hereby agree that for the purposes of the issue and sale of
Notes denominated in [title of currency or currency unit] (the "Denominated
Currency") and indexed to [title of currency or currency unit] (the "Indexed
Currency") pursuant to the Distribution Agreement, dated ______, 1995, as it may
be amended (the "Distribution Agreement"), the following additions and
modifications shall be made to the Distribution Agreement. The additions and
modifications adopted hereby shall be of the same effect for the sale under the
Distribution Agreement of all Notes denominated in the Denominated Currency and
indexed to the Indexed Currency, whether offered on an agency or principal
basis, but shall be of no effect with respect to Notes denominated in any
currency or currency unit other than the Applicable Foreign Currency.
Except as otherwise expressly provided herein, all terms used herein which
are defined in the Distribution Agreement shall have the same meanings as in the
Distribution Agreement. The terms Agent or Agents, as used in the Distribution
Agreement, shall be deemed to refer [only] to the undersigned Agents for
purposes of this Amendment.
[Insert appropriate additions and modifications to the Distribution
Agreement, for example, to opinions of counsel, conditions to obligation and
settlement procedures, etc.]
_________________, 19___
Alco Capital Resource, Inc.
By:_______________________________________
Name:
Title:
[Name(s) of Agent(s) Participating
In the Offering of the Indexed Notes]
By:_______________________________________
Name:
Title:
<PAGE>
EXHIBIT 4
S&C Draft of May 5, 1995
================================================================================
ALCO CAPITAL RESOURCE, INC.
TO
CHEMICAL BANK,
Trustee
______________
Indenture
Dated as of _______, 1995
______________
================================================================================
<PAGE>
Alco Capital Resource, Inc.
Certain Sections of this Indenture relating to Sections 310 through 318,
inclusive, of the Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C>
(S) 310(a)(1) ................................... 609
(a)(2) ................................... 609
(a)(3) ................................... Not Applicable
(a)(4) ................................... Not Applicable
(b) ................................... 608
610
(S) 311(a) ................................... 613
(b) ................................... 613
(S) 312(a) ................................... 701
702
(b) ................................... 702
(c) ................................... 702
(S) 313(a) ................................... 703
(b) ................................... 703
(c) ................................... 703
(d) ................................... 703
(S) 314(a) 704
(a)(4) ................................... 101
1006
(b) ................................... Not Applicable
(c)(1) ................................... 102
(c)(2) ................................... 102
(c)(3) ................................... Not Applicable
(d) ................................... Not Applicable
(e) ................................... 102
(S) 315(a) ................................... 601
(b) ................................... 602
(c) ................................... 601
(d) ................................... 601
(e) ................................... 514
(S) 316(a) ................................... 101
(a)(1)(A) ................................... 502
512
(a)(1)(B) ................................... 513
(a)(2) ................................... Not Applicable
(b) ................................... 508
(c) ................................... 104
(S) 317(a)(1) ................................... 503
(a)(2) ................................... 504
(b) ................................... 1003
(S) 318(a) ................................... 107
</TABLE>
___________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
----------
<TABLE>
<CAPTION>
Page
----
<S> <C>
Parties .................................................................. 1
Recitals of the Company ................................................... 1
</TABLE>
ARTICLE ONE
Definitions and Other Provisions of General Application
<TABLE>
<S> <C> <C>
Section 101. Definitions:
Act........................................................ 2
Affiliate; control......................................... 2
Alco Standard.............................................. 2
Authenticating Agent....................................... 2
Board of Directors......................................... 2
Board Resolution........................................... 2
Business Day............................................... 2
Commission................................................. 2
Company.................................................... 2
Company Request; Company Order............................. 3
Consolidated Net Tangible Assets........................... 3
Corporate Trust Office..................................... 3
corporation................................................ 3
Covenant Defeasance........................................ 3
Defaulted Interest......................................... 3
Defeasance................................................. 3
Depositary................................................. 3
Event of Default........................................... 3
Exchange Act............................................... 3
Expiration Date............................................ 3
Global Security............................................ 3
Holder..................................................... 3
Indenture.................................................. 4
interest................................................... 4
Interest Payment Date...................................... 4
Investment Company Act..................................... 4
Maturity................................................... 4
Notice of Default.......................................... 4
Officers' Certificate...................................... 4
Opinion of Counsel......................................... 4
Original Issue Discount Security........................... 4
</TABLE>
- ----------
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the indenture.
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Outstanding................................................ 4
Paying Agent............................................... 5
Person..................................................... 5
Place of Payment........................................... 6
Predecessor Security....................................... 6
Redemption Date............................................ 6
Redemption Price........................................... 6
Regular Record Date........................................ 6
Responsible Officer........................................ 6
Secured Debt............................................... 6
Securities................................................. 6
Securities Act............................................. 6
Security Register and Security Registrar................... 6
Special Record Date........................................ 6
Stated Maturity............................................ 7
Subsidiary................................................. 7
Support Agreement.......................................... 7
Trust Indenture Act........................................ 7
Trustee.................................................... 7
U.S. Government Obligation................................. 7
Vice President............................................. 7
Wholly-owned Subsidiary.................................... 7
Section 102. Compliance Certificates and Opinions....................... 7
Section 103. Form of Documents Delivered to Trustee..................... 8
Section 104. Acts of Holders; Record Dates.............................. 9
Section 105. Notices, Etc., to Trustee and Company...................... 11
Section 106. Notice to Holders; Waiver.................................. 11
Section 107. Conflict with Trust Indenture Act.......................... 12
Section 108. Effect of Headings and Table of Contents................... 12
Section 109. Successors and Assigns..................................... 12
Section 110. Separability Clause........................................ 12
Section 111. Benefits of Indenture...................................... 12
Section 112. Governing Law.............................................. 12
Section 113. Legal Holidays............................................. 12
</TABLE>
ARTICLE TWO
Security Forms
<TABLE>
<S> <C> <C>
Section 201. Forms Generally............................................ 13
Section 202. Form of Face of Security................................... 14
</TABLE>
-ii-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 203. Form of Reverse of Security................................ 15
Section 204. Form of Legend for Global Securities....................... 20
Section 205. Form of Trustee's Certificate of Authentication............ 20
Section 206. Form of Assignment......................................... 20
</TABLE>
ARTICLE THREE
The Securities
<TABLE>
<S> <C> <C>
Section 301. Amount Unlimited; Issuable in Series....................... 21
Section 302. Denominations.............................................. 24
Section 303. Execution, Authentication, Delivery and Dating............. 24
Section 304. Temporary Securities....................................... 26
Section 305. Registration, Registration of Transfer and Exchange........ 27
Section 306. Mutilated, Destroyed, Lost and Stolen Securities........... 28
Section 307. Payment of Interest; Interest Rights Preserved............. 29
Section 308. Persons Deemed Owners...................................... 30
Section 309. Cancellation............................................... 30
Section 310. Computation of Interest.................................... 31
</TABLE>
ARTICLE FOUR
Satisfaction and Discharge
<TABLE>
<S> <C> <C>
Section 401. Satisfaction and Discharge of Indenture.................... 31
Section 402. Application of Trust Money ................................ 32
</TABLE>
ARTICLE FIVE
Remedies
<TABLE>
<S> <C> <C>
Section 501. Events of Default.......................................... 32
Section 502. Acceleration of Maturity; Rescission and Annulment......... 34
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee................................... 35
Section 504. Trustee May File Proofs of Claim........................... 36
Section 505. Trustee May Enforce Claims Without Possession
of Securities............................................ 36
Section 506. Application of Money Collected............................. 37
Section 507. Limitation on Suits........................................ 37
</TABLE>
-iii-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest..................................... 38
Section 509. Restoration of Rights and Remedies......................... 38
Section 510. Rights and Remedies Cumulative............................. 38
Section 511. Delay or Omission Not Waiver............................... 38
Section 512. Control by Holders......................................... 39
Section 513. Waiver of Past Defaults.................................... 39
Section 514. Undertaking for Costs...................................... 39
Section 515. Waiver of Usury, Stay or Extension Laws.................... 40
</TABLE>
ARTICLE SIX
The Trustee
<TABLE>
<S> <C> <C>
Section 601. Certain Duties and Responsibilities........................ 40
Section 602. Notice of Defaults......................................... 40
Section 603. Certain Rights of Trustee.................................. 41
Section 604. Not Responsible for Recitals or Issuance of Securities..... 42
Section 605. May Hold Securities........................................ 42
Section 606. Money Held in Trust........................................ 42
Section 607. Compensation and Reimbursement............................. 42
Section 608. Conflicting Interests...................................... 43
Section 609. Corporate Trustee Required; Eligibility.................... 44
Section 610. Resignation and Removal; Appointment of Successor.......... 44
Section 611. Acceptance of Appointment by Successor..................... 45
Section 612. Merger, Conversion, Consolidation or Succession
to Business.............................................. 47
Section 613. Preferential Collection of Claims Against Company.......... 47
Section 614. Appointment of Authenticating Agent........................ 47
</TABLE>
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
<TABLE>
<S> <C> <C>
Section 701. Company to Furnish Trustee Names and Addresses
of Holders............................................... 49
Section 702. Preservation of Information; Communications
to Holders............................................... 49
Section 703. Reports by Trustee......................................... 50
Section 704. Reports by Company......................................... 50
</TABLE>
-iv-
<PAGE>
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 801. Company May Consolidate, Etc., Only on
Certain Terms............................................ 51
Section 802. Successor Substituted...................................... 52
</TABLE>
ARTICLE NINE
Supplemental Indentures
<TABLE>
<S> <C> <C>
Section 901. Supplemental Indentures Without Consent of Holders......... 52
Section 902. Supplemental Indentures With Consent of Holders............ 53
Section 903. Execution of Supplemental Indentures....................... 54
Section 904. Effect of Supplemental Indentures.......................... 54
Section 905. Conformity with Trust Indenture Act........................ 55
Section 906. Reference in Securities to Supplemental Indentures......... 55
</TABLE>
ARTICLE TEN
Covenants
<TABLE>
<S> <C> <C>
Section 1001. Payment of Principal, Premium and Interest................. 55
Section 1002. Maintenance of Office or Agency............................ 55
Section 1003. Money for Securities Payments to Be Held in Trust.......... 56
Section 1004. Maintenance of Support Agreement........................... 57
Section 1005. Restriction on Creation of Secured Debt.................... 57
Section 1006. Statement by Officers as to Default........................ 59
Section 1007. Existence.................................................. 59
Section 1008. Maintenance of Properties.................................. 59
Section 1009. Payment of Taxes and Other Claims.......................... 60
Section 1010. Waiver of Certain Covenants................................ 60
</TABLE>
-v-
<PAGE>
ARTICLE ELEVEN
Redemption of Securities
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 1101. Applicability of Article................................... 60
Section 1102. Election to Redeem; Notice to Trustee...................... 60
Section 1103. Selection by Trustee of Securities to Be Redeemed.......... 61
Section 1104. Notice of Redemption....................................... 62
Section 1105. Deposit of Redemption Price................................ 62
Section 1106. Securities Payable on Redemption Date...................... 63
Section 1107. Securities Redeemed in Part................................ 63
</TABLE>
ARTICLE TWELVE
Sinking Funds
<TABLE>
<S> <C> <C>
Section 1201. Applicability of Article................................... 63
Section 1202. Satisfaction of Sinking Fund Payments with Securities...... 64
Section 1203. Redemption of Securities for Sinking Fund.................. 64
</TABLE>
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
<TABLE>
<S> <C> <C>
Section 1301. Company's Option to Effect Defeasance or
Covenant Defeasance...................................... 65
Section 1302. Defeasance and Discharge................................... 65
Section 1303. Covenant Defeasance........................................ 65
Section 1304. Conditions to Defeasance or Covenant Defeasance............ 66
Section 1305. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Miscellaneous Provisions............ 68
Section 1306. Reinstatement.............................................. 68
Testimonium................................................................ 70
Signatures and Seals....................................................... 70
Acknowledgements........................................................... 71
</TABLE>
-vi-
<PAGE>
INDENTURE, dated as of _______, 1995, between Alco Capital Resource, Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 1738 Bass Road,
Macon, Georgia, and Chemical Bank, a banking corporation duly organized and
existing under the laws of the State of New York, as Trustee (herein called the
"Trustee").
Recitals of the Company
The Company has duly authorized the execution and delivery of this Indenture
to provide for the issuance from time to time of its unsecured debentures, notes
or other evidences of indebtedness (herein called the "Securities"), to be
issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the Company,
in accordance with its terms, have been done.
Now, Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or
unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to
them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and, except as otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted at the date of such computation;
<PAGE>
(4) unless the context otherwise requires, any reference to an "Article"
or a "Section" refers to an Article or a Section, as the case may be, of this
Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Alco Standard" means Alco Standard Corporation, an Ohio corporation, and its
successors.
"Authenticating Agent" means any Person authorized by the Trustee pursuant to
Section 614 to act on behalf of the Trustee to authenticate Securities of one or
more series.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary or
an Assistant Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions and trust companies in that Place of Payment are authorized
or obligated by law, regulation or executive order to close.
"Commission" means the Securities and Exchange Commission, from time to time
constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
-2-
<PAGE>
"Company Request" or "Company Order" means a written request or order signed
in the name of the Company by its Chairman of the Board, its Vice Chairman of
the Board, its President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Consolidated Net Tangible Assets" means as of any particular time the
aggregate amount of assets after deducting therefrom (a) all current liabilities
(excluding any such liability that by its terms is extendable or renewable at
the option of the obligor thereon to a time more than 12 months after the time
as of which the amount thereof is being computed) and (b) all goodwill, excess
of cost over assets acquired, patents, copyrights, trademarks, trade names,
unamortized debt discount and expense and other like intangibles, all as shown
in the most recent consolidated financial statements of the Company and its
Subsidiaries prepared in accordance with generally accepted accounting
principles.
"Corporate Trust Office" means the principal corporate trust office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office as of the date of this Indenture is the address of
the Trustee set forth in Section 105.
"corporation" means a corporation, association, company, joint-stock company
or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 204 (or such
legend as may be specified as contemplated by Section 301 for such Securities).
"Holder" means a Person in whose name a Security is registered in the
Security Register.
-3-
<PAGE>
"Indenture" means this instrument as originally executed and as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an instalment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an instalment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in Section
501(5) or 501(6).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the Company, and delivered to the Trustee. One of the officers signing an
Officers' Certificate given pursuant to Section 1006 shall be the principal
executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the date of
determination, all Securities theretofore authenticated and delivered under this
Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
-4-
<PAGE>
(2) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of
such Securities; provided that, if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to
Section 1302; and
(4) Securities which have been paid pursuant to Section 306 or in exchange
for or in lieu of which other Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated
in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in
the manner provided as contemplated by Section 301, of the principal amount of
such Security (or, in the case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such Clause), and (D) 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, waiver or other action, only Securities which a Responsible
Officer of 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" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
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<PAGE>
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where the principal of and any premium and interest on
the Securities of that series are payable as specified as contemplated by
Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means any
officer within the Corporate Trust Department (or any successor department)
including without limitation any vice president, any assistant vice president,
any trust officer, any assistant secretary or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers, in each case with direct responsibility for the
administration of this Indenture, and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Secured Debt" means indebtedness for money borrowed which is secured by a
mortgage, pledge, lien, security interest or encumbrance on any property of any
character of the Company.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute successor
thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a date
fixed by the Trustee pursuant to Section 307.
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"Stated Maturity", when used with respect to any Security or any instalment
of principal thereof or interest thereon, means the date specified in such
Security as the fixed date on which the principal of such Security or such
instalment of principal or interest is due and payable.
"Subsidiary" means with respect to any Person, a corporation of which more
than 50% of the outstanding stock having ordinary voting power to elect
directors is owned, directly or indirectly, by such Person or by one or more
other corporations more than 50% of such stock of which is similarly owned or
controlled.
"Support Agreement" means the Support Agreement, dated as of June 1, 1994,
between Alco Standard and the Company as in effect on the date hereof or as it
may from time to time be amended pursuant to the applicable provisions hereof or
thereof.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, as
in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"U.S. Government Obligation" has the meaning specified in Section 1304.
"Vice President", when used with respect to the Company or the Trustee, means
any vice president, whether or not designated by a number or a word or words
added before or after the title "vice president".
"Wholly-owned Subsidiary" of any Person means any Subsidiary of which, at the
time of determination, all of the outstanding stock having ordinary voting power
to elect directors (other than directors' qualifying shares) is owned by such
Person directly and/or indirectly.
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and
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<PAGE>
shall comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (except for certificates provided for in
Section 1006) shall include,
(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(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 each such individual, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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Section 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to give, make or
take any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders of Securities of such series, provided that the Company may not set
a record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or
direction referred to in the next paragraph. If any record date is set pursuant
to this paragraph, the Holders of Outstanding Securities of the relevant series
on such record date, and no other Holders, shall be entitled to take the
relevant action, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken on
or prior to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities of such series on such record date.
Nothing in this paragraph shall be construed to prevent the
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Company from setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be
cancelled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities of the relevant series on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to
the Trustee in writing and to each Holder of Securities of the relevant series
in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and nothing in
this paragraph shall be construed to render ineffective any action taken by
Holders of the requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after any record
date is set pursuant to this paragraph, the Trustee, at the Company's expense,
shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Company in writing and to each
Holder of Securities of the relevant series in the manner set forth in Section
106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
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<PAGE>
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard
to all or any part of the principal amount of such Security or by one or more
duly appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, which office as of the date
hereof is located at Chemical Bank, 450 West 33rd Street, 15th Floor, New York,
New York 10001, Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to it
at the address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee by the Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
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Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the law of the State of New York.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision
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of any Security which specifically states that such provision shall apply in
lieu of this Section)) payment of interest or principal (and premium, if any)
need not be made at such Place of Payment on such date, but may be made on the
next succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity, provided that no interest or original issue discount with
respect to such payment shall accrue for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant
to a Board Resolution and set forth, or determined in the manner provided, in
an Officers' Certificate, or established in one or more indentures supplemental
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 and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 for the authentication and delivery
of such Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
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<PAGE>
Section 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
Alco Capital Resource, Inc.
[Title of Security]
CUSIP No. ........
No. ......... $ ........
Alco Capital Resource, Inc., a corporation duly organized and existing under
the laws of Delaware (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ......................................, or
registered assigns, the principal sum of ............................. Dollars
on .................................................... [if the Security is to
bear interest prior to Maturity, insert -- , and to pay interest thereon from
............... or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually on .............. and
............ in each year, commencing ........., at the rate of ....% per annum,
until the principal hereof is paid or made available for payment [if applicable,
insert -- , provided that any principal and premium, and any such instalment of
interest, which is overdue shall bear interest at the rate of ...% per annum (to
the extent that the payment of such interest shall be legally enforceable), from
the dates such amounts are due until they are paid or made available for
payment, and such interest shall be payable on demand]. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the ....... or
....... (whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ....% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates
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such amounts are due until they are paid or made available for payment. Interest
on any overdue principal or premium shall be payable on demand. Any such
interest on overdue principal or premium which is not paid on demand shall bear
interest at the rate of ......% per annum (to the extent that the payment of
such interest on interest shall be legally enforceable), from the date of such
demand until the amount so demanded is paid or made available for payment.
Interest on any overdue interest shall be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable, insert
- -- any such] interest on this Security will be made at the office or agency of
the Company maintained for that purpose in ............, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert -- ;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register] [if applicable, insert --
provided, however, that so long as this Security is registered in the name of
The Depository Trust Company or its nominee, all payments of principal, premium,
if any, and interest will be made by the Company in immediately available
funds].
Reference is hereby made to the further provisions of this Security set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
In Witness Whereof, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
Alco Capital Resource, Inc.
By...........................................
Attest:
.........................................
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the Company
(herein called the "Securities"), issued and to be issued in one or more series
under an
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Indenture, dated as of ..............., 1995 (herein called the "Indenture",
which term shall have the meaning assigned to it in such instrument), between
the Company and Chemical Bank, as Trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), and reference is
hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof [if applicable, insert -- , limited
in aggregate principal amount to $...........].
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
(1) on ........... in any year commencing with the year ...... and ending with
the year ...... through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert -- on or after .........., 19..], as a whole or in part, at
the election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [if applicable, insert -- on
or before ..............., ...%, and if redeemed] during the 12-month period
beginning ............. of the years indicated,
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
- ---- ---------- ---- ----------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ............ in
any year commencing with the year .... and ending with the year .... through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert -- on or after ............], as a whole or in part, at the
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election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning ............ of the years indicated,
<TABLE>
<CAPTION>
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
- ---- ----------------- ----------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Company may not,
prior to ............., redeem any Securities of this series as contemplated by
[if applicable, insert -- Clause (2) of] the preceding paragraph as a part of,
or in anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than .....% per annum.]
[If applicable, insert -- The sinking fund for this series provides for the
redemption on ............ in each year beginning with the year ....... and
ending with the year ...... of [if applicable, insert -- not less than
$.......... ("mandatory sinking fund") and not more than] $......... aggregate
principal amount of Securities of this series. Securities of this series
acquired or redeemed by the Company otherwise than through [if applicable,
insert -- mandatory] sinking fund payments may be credited against subsequent
[if applicable, insert -- mandatory] sinking fund payments otherwise required to
be made [if applicable, insert -- , in the inverse order in which they become
due].]
[If the Security is subject to redemption of any kind, insert -- In the event
of redemption of this Security in part only, a new Security or Securities of
this series and of like tenor for the unredeemed portion hereof will be issued
in the name of the Holder hereof upon the cancellation hereof.]
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[If the Security is not an Original Issue Discount Security, insert -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66 2/3% in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of
this Security shall not have the right to institute any proceeding with respect
to the Indenture or for the appointment of a receiver or trustee or for any
other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder
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of this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
During a period beginning at the opening of business 15 days before the day of
mailing of a notice of redemption of Securities of the series selected for
redemption and ending at the close of business on the day of such mailing, the
Company shall not be required to issue, register the transfer of or exchange
this Security except as provided in the Indenture.
The Securities of this series are issuable only in registered form without
coupons in denominations of $....... and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
This Security shall be governed by and construed in accordance with the laws
of the State of New York.
All terms used in this Security which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
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Section 204. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the Securities
evidenced thereby, every Global Security authenticated and delivered hereunder
shall bear a legend in substantially the following form:
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee thereof. This Security may not be exchanged in whole or in part for a
Security registered, and no transfer of this Security in whole or in part may be
registered, in the name of any Person other than such Depositary or a nominee
thereof, except in the limited circumstances described in the Indenture.
Section 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
Chemical Bank,
As Trustee
By.........................................
Authorized Officer
Section 206. Form of Assignment.
The form of assignment on the Securities shall be substantially in the
following form:
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
- -------------------------------------------
(Insert assignee's soc. sec. or tax ID no.)
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- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________ agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for him.
Date:
-----------------------
-----------------------------
SIGNATURE GUARANTEE
Signature Guaranteed by:
- ------------------------------------------
By: --------------------------------------
- ------------------------------------------
The signature must be guaranteed by an eligible guarantor institution (a bank,
stockbroker, savings and loan association or credit union with membership in an
approved signature guarantee medallion program), pursuant to Rule 17Ad-15 under
the Securities Exchange Act of 1934.
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, 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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(1) the title of the Securities of the series (which shall distinguish the
Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of the
series which may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the series pursuant to
Section 304, 305, 306, 906 or 1107 and except for any Securities which,
pursuant to Section 303, are deemed never to have been authenticated and
delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall be
payable, if other than the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest;
(4) the date or dates on which the principal of any Securities of the
series is payable;
(5) the rate or rates at which any Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall accrue,
the Interest Payment Dates on which any such interest shall be payable and the
Regular Record Date for any such interest payable on any Interest Payment Date;
(6) the place or places where the principal of and any premium and interest
on any Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which and
the terms and conditions upon which any Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other than
by a Board Resolution, the manner in which any election by the Company to
redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous provisions
or at the option of the Holder thereof and the period or periods within which,
the price or prices at which and the terms and conditions upon which any
Securities of the series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
(10) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be determined;
(11) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any premium
or interest on
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any Securities of the series shall be payable and the manner of determining the
equivalent thereof in the currency of the United States of America for any
purpose, including for purposes of the definition of "Outstanding" in Section
101;
(12) if the principal of or any premium or interest on any Securities of
the series is to be payable, at the election of the Company or the Holder
thereof, in one or more currencies or currency units other than that or those
in which such Securities are stated to be payable, the currency, currencies or
currency units in which the principal of or any premium or interest on such
Securities as to which such election is made shall be payable, the periods
within which and the terms and conditions upon which such election is to be
made and the amount so payable (or the manner in which such amount shall be
determined);
(13) if other than the entire principal amount thereof, the portion of the
principal amount of any Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502;
(14) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more dates
prior to the Stated Maturity, the amount which shall be deemed to be the
principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall be
due and payable upon any Maturity other than the Stated Maturity or which shall
be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in
any such case, the manner in which such amount deemed to be the principal
amount shall be determined);
(15) if applicable, that any Securities of the series shall be issuable in
whole or in part in the form of one or more Global Securities and, in such
case, the respective Depositaries for such Global Securities, the form of any
legend or legends which shall be borne by any such Global Security in addition
to or in lieu of that set forth in Section 204 and any circumstances in
addition to or in lieu of those set forth in Clause (2) of the last paragraph
of Section 305 in which any such Global Security may be exchanged in whole or
in part for Securities registered, and any transfer of such Global Security in
whole or in part may be registered, in the name or names of Persons other than
the Depositary for such Global Security or a nominee thereof;
(16) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 1302 or Section 1303 or
both such Sections and, if other than by a Board Resolution, the manner in
which any election by the Company to defease such Securities shall be
evidenced;
(17) any addition to or change in the Events of Default which applies to
any Securities of the series and any change in the right of the Trustee or the
requisite Holders of such Securities to declare the principal amount thereof
due and payable pursuant to Section 502;
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(18) any deletion or addition to or change in the covenants set forth in
Article Ten which applies to Securities of the series;
(19) if other than as provided in Section 201, the form or forms of the
Securities; and
(20) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture, except as permitted by Section 901(5)).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 302. Denominations.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman of
the Board, its Vice Chairman of the Board, its President, one of its Vice
Presidents or its Treasurer, under its corporate seal reproduced thereon
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who were
at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall
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authenticate and deliver such Securities. In authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(1) the form of such Securities has been established in conformity with the
provisions of this Indenture;
(2) the terms of such Securities have been established in conformity with
the provisions of this Indenture;
(3) that such Securities, when authenticated and delivered by the Trustee
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, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and
an Officer's Certificate stating that all conditions precedent to authentication
of such Securities have been complied with.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding paragraph,
if all Securities of a series are not to be originally issued at one time, it
shall not be necessary to deliver the Officers' Certificate otherwise required
pursuant to Section 301 or the Company Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraph at or prior to the authentication
of each Security of such series if such documents are delivered at or prior to
the authentication upon original issuance of the first Security of such series
to be issued; provided that any subsequent request by the Company to the Trustee
to authenticate Securities of such series upon original issuance shall
constitute a representation and warranty by the Company that as of the date of
such request, the statements made in the Officers' Certificate or other
certificates delivered pursuant to Sections 102 and 301 shall be true and
correct as if made on such date.
A Company Order, Officers' Certificate or Board Resolution or supplemental
indenture delivered by the Company to the Trustee in the circumstances set forth
in the preceding paragraph may provide that Securities which are the subject
thereof will be authenticated and delivered by the Trustee or its agent on
original issue from time to time in the aggregate principal amount, if any,
established for such series pursuant to such procedures acceptable to the
Trustee as may be specified from time to time by Company Order upon the
telephonic, electronic or written order of Persons designated in such Company
Order, Officers' Certificate, supplemental indenture or Board Resolution (any
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such telephonic or electronic instructions to be promptly confirmed in writing
by such Persons) and that such Persons are authorized to determine, consistent
with such Company Order, Officers' Certificate, supplemental indenture or Board
Resolution, such terms and conditions of said Securities as are specified in
such Company Order, Officers' Certificate, supplemental indenture or Board
Resolution.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor one or more definitive
Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount. Until so exchanged, the temporary Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.
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Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at
the office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of like tenor and aggregate
principal amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange
of Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 306 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are to
be redeemed in part, the Company shall not be required (A) to issue, register
the transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, or
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(B) to register the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global Security or
a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the
name of any Person other than the Depositary for such Global Security or a
nominee thereof unless (A) such Depositary (i) has notified the Company that it
is unwilling or unable to continue as Depositary for such Global Security or
(ii) has ceased to be a clearing agency registered under the Exchange Act, (B)
there shall have occurred and be continuing an Event of Default with respect to
such Global Security or (C) there shall exist such circumstances, if any, in
addition to or in lieu of the foregoing as have been specified for this purpose
as contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all Securities issued in
exchange for a Global Security or any portion thereof shall be registered in
such names as the Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Section, Section 304, 306, 906 or 1107 or
otherwise, shall be authenticated and delivered in the form of, and shall be, a
Global Security, unless such Security is registered in the name of a Person
other than the Depositary for such Global Security or a nominee thereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such
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Security has been acquired by a bona fide purchaser, the Company shall execute
and the Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security, a new Security of the same series and of like tenor
and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed
in the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security of such
series and the date of the proposed payment, and at the same time the Company
shall deposit with the
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Trustee an amount of money equal to the aggregate amount proposed to be paid
in respect of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior
to the date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
given to each Holder of Securities of such series in the manner set forth in
Section 106, not less than 10 days prior to such Special Record Date. Notice
of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the following
Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security delivered
under this Indenture upon registration of transfer of or in exchange for or in
lieu of any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and any premium and
(subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 309. Cancellation.
All Securities surrendered for payment, redemption, registration of transfer
or exchange or for credit against any sinking fund payment shall, if surrendered
to any
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Person other than the Trustee, be delivered to the Trustee and shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities held by the
Trustee shall be destroyed and a certificate of destruction delivered to the
Company.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than (i)
Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306 and (ii) Securities for whose
payment money has theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year, or
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(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose money in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal and any premium and interest to the date of such
deposit (in the case of Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Company to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or
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pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that series
when it becomes due and payable, and continuance of such default for a period
of 30 days; or
(2) default in the payment of the principal of or any premium on any
Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due by
the terms of a Security of that series; or
(4) default in the performance, or breach, of any term or provision of
Section 1004; or
(5) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely for
the benefit of series of Securities other than that series), and continuance of
such default or breach for a period of 60 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 that series a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(6) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company (including a default with
respect to Securities of any series other than that series), or under 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 by the Company, whether such indebtedness now exists or
shall hereafter be created, which default shall constitute a failure to pay any
portion of the principal of such indebtedness in a principal amount in excess
of $15,000,000 when due and payable after the expiration of any applicable
grace period with respect thereto or shall have resulted in such indebtedness
in a principal amount in excess of $15,000,000 becoming or being declared due
and payable prior to the date on which it would otherwise have become due and
payable, without such portion or such indebtedness, as the case may be,
becoming no longer due and payable or having been discharged, or such
acceleration having been rescinded or annulled, within a period of 10 days
after there shall have 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 that series a
written notice specifying such default and requiring the Company to cause such
indebtedness to be discharged or cause such acceleration to be rescinded or
annulled, as the case may be, and stating that such notice is a "Notice of
Default" hereunder; or
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(7) the entry by a court having jurisdiction in the premises of (A) a decree
or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days; or
(8) the commencement by the Company of a voluntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State law, or
the consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the Company
in furtherance of any such action; or
(9) in connection with any proceeding under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors involving Alco Standard or
one of its Subsidiaries, an order for relief shall be entered by a court of
competent jurisdiction which affects any significant part of the assets of the
Company or any of its Subsidiaries; or
(10) any other Event of Default provided with respect to Securities of that
series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount of all the
Securities of that series (or, if any Securities of that series are Original
Issue Discount Securities, such portion of the principal amount of such
Securities as may be specified by the terms thereof) to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable.
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At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that
series which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest upon
overdue interest at the rate or rates prescribed therefor in such Securities,
and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel and all other amounts due to the Trustee under Section 607;
and
(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series which have
become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security when such
interest becomes due and payable and such default continues for a period of 30
days, or
(2) default is made in the payment of the principal of (or premium, if any,
on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall
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be legally enforceable, interest on any overdue principal and premium and on any
overdue interest, at the rate or rates prescribed therefor in such Securities,
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 607.
If an Event of Default with respect to Securities of any series occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust,
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and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such money on account of principal or any premium or
interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section 607; and
Second: To the payment of the amounts then due and unpaid for principal of
and any premium and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal and any premium and interest, respectively.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable indemnity
against the costs, expenses and liabilities to be incurred in compliance with
such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Securities of that series;
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it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein.
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Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such series, provided that
(1) 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 or would conflict with this Indenture or if
the Trustee in good faith shall, by a Responsible Officer, determine that the
proceedings so directed would involve it in personal liability or be unjustly
prejudicial to the Holders not taking part in such direction, and
(2) the Trustee may take any other action deemed proper by the Trustee which
is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on any
Security of such series, or
(2) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture,
or in any suit against the Trustee for any action taken, suffered or omitted by
it as Trustee, a
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court may require any party litigant in such suit to file an undertaking to pay
the costs of such suit, and may assess costs against any such party litigant, in
the manner and to the extent provided in the Trust Indenture Act; provided that
neither this Section nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such an assessment in any
suit instituted by the Company.
Section 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will
not at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any usury, stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, (a) no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and (b) no provision of this Indenture
shall require the Trustee to determine the maximum interest rate permissable
under applicable law.
Section 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series, the
Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(5) with respect to Securities of such series, no such notice to Holders
shall be given until at least 60 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is,
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or after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
The Trustee shall not be deemed to have knowledge of any default or Event of
Default except (i) an Event of Default described in Section 501(1), (2) or (3)
or (ii) any default or Event of Default of which the Trustee shall have received
written notification or a Responsible Officer charged with the administration of
the Indenture shall have obtained actual knowledge, and such notification shall
not be deemed to include receipt of information obtained in any report or other
documents furnished under Section 704 of this Indenture, which reports and
documents the Trustee shall have no duty to examine.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, and any
resolution of the Board of Directors shall be sufficiently evidenced by a Board
Resolution;
(3) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely
upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture at the request or direction of any of the
Holders pursuant to this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(6) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and,
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if the Trustee shall determine to make such further inquiry or investigation,
it shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney; and
(7) 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 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Company, and 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. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
Section 606. Money Held in Trust.
Subject to Section 1003, money held by the Trustee in trust hereunder need
not be segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
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(2) except as otherwise expressly provided herein, to reimburse the Trustee
and each predecessor 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 and of all agents and
other persons not regularly in its employ and the reasonable fees of in-house
counsel in the regular employ of the Trustee which are allocable to this trust
and the expenses and disbursements of such counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
(3) to indemnify the Trustee and each predecessor Trustee and the officers,
directors, employees and agents of the Trustee or any such predecessor Trustee
(the Trustee, each predecessor Trustee and such officers, directors, employees
and agents being hereinafter referred to in this Section collectively as the
"Indemnified Parties" and individually as an "Indemnified Party") for, and to
hold each Indemnified Party harmless against, any loss, damage, claim, cost,
liability or expenses (including reasonable attorneys fees) incurred without
negligence or bad faith on the part of such Indemnified Party, arising out of
or in connection with the acceptance or administration of this Indenture or the
trusts hereunder and the duties of the Trustee hereunder, and the costs and
expenses incurred by such Indemnified Party in the course of defending itself
against or investigating any claim of liability in the premises.
The obligations of the Company under this Section to compensate and indemnify
the Indemnified Parties and to pay or reimburse each Indemnified Party for
expenses, disbursements and advances shall constitute an additional obligation
hereunder and shall survive resignation or removal of the Trustee and the
satisfaction and discharge of this Indenture.
If the Trustee incurs expenses or renders services after the occurrence of an
Event of Default specified in clause (7) or (8) of Section 501 of this
Indenture, the expenses and the compensation for the services will be intended
to constitute expenses of administration under Title 11 of the United States
Bankruptcy Code or any other applicable federal or state law for the relief of
debtors.
As security for the performance of the obligations of the Company under this
Section the Trustee shall have a lien prior to the Securities upon all property
and funds held or collected by the Trustee as such, except funds held in trust
for the payment of principal of (and premium, if any) or interest on particular
Securities.
Section 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning
of the Trust Indenture Act, the Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series.
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Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with respect
to the Securities of each series, which may be Trustee hereunder for Securities
of one or more other series. Each Trustee shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has either (i) a reported
capital and surplus aggregating at least $50,000,000 or (ii) a reported capital
and surplus aggregating at least $10,000,000 and is a wholly-owned subsidiary of
a bank, a trust company or a bank holding company having a reported capital and
surplus aggregating at least $50,000,000. If any such Person publishes reports
of condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section and to
the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee with respect to the Securities of any series shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 610. Resignation and Removal; Appointment of Successor.
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 in accordance with the applicable
requirements of Section 611.
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 611 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 the
Securities of such series.
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 to the
Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written request
therefor by the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall fail
to resign after written request therefor by the Company or by any such Holder,
or
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(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, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
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, the Company, by 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 611. 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 611, 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 and accepted appointment in the manner required by Section 611, any
Holder 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.
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 to all Holders of
Securities of such series in the manner provided in Section 106. 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 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such
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appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder, subject nevertheless to its lien, if any,
provided in Section 607.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) 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 and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; 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 and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall, upon payment
of its charges, duly assign, transfer and deliver to such successor Trustee all
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, subject to the lien, if any, of the retiring Trustee provided
in Section 607.
Upon request of any such successor Trustee, the Company shall execute any and
all instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts referred to in the first or
second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article.
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Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or any
other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one
or more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon original issue and
upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 306, 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 shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such
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Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
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 continue to be an
Authenticating Agent, 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 to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. 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 Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to this
Section, the Securities of such series may have endorsed thereon, in addition to
the Trustee's certificate of authentication, an alternative certificate of
authentication in the following form:
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
Chemical Bank,
As Trustee
By......................................,
As Authenticating Agent
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By.......................................
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than June 15 and December 15 in each year, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of Securities of each series as of the preceding May
31 or November 30, as the case may be, and
(2) at such other times as the Trustee may request in writing, within 30 days
after the receipt by the Company of any such request, a list of similar form
and content as of a date not more than 15 days prior to the time such list is
furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to their
rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by 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 nor the Trustee nor any
agent of either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to the Trust
Indenture Act.
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Section 703. Reports by Trustee.
Any Trustee's report required under Section 313(a) of the Trust Indenture Act
shall be transmitted by July 15 of each year, and shall be dated as of the
preceding May 15, commencing July 15, 1996.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within
15 days after the same is so required to be filed with the Commission.
The Company will deliver to the Trustee, within forty days of the date of
original issuance of any Original Issue Discount Securities, an Officers'
Certificate, setting forth (i) the amount of the original issue discount on such
Original Issue Discount Securities, expressed as a U.S. dollar amount per $1,000
of principal amount at Stated Maturity, (ii) the yield to maturity for such
Original Issue Discount Securities, and (iii) a table of the amount of the
original issue discount on such Original Issue Discount Securities, expressed as
a U.S. dollar amount per $1,000 of principal amount at Stated Maturity.
On or before December 15 of each year during which any Original Issue
Discount Securities are outstanding, the Company shall furnish to the Trustee
such information as may be reasonably requested by the Trustee in order that the
Trustee may prepare the information which it is required to report for such year
on Internal Revenue Services Forms 1096 and 1099 pursuant to Section 6049 of the
Internal Revenue Code of 1986, as amended. Such information shall include the
amount of original issue discount includible in income for each $1,000 of
principal amount at Stated Maturity of Outstanding Original Issue Discount
Securities during such year.
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ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, and the Company shall not permit any Person to consolidate with
or merge into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as an
entirety shall be a corporation, partnership or trust, shall be organized and
validly existing under the laws of the United States of America, any State
thereof or the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of
and any premium and interest on all the Securities and the performance or
observance of every covenant of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the Company or any Subsidiary as a
result of such transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of Default,
shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such conveyance,
transfer or lease, properties or assets of the Company would become subject to
a mortgage, pledge, lien, security interest or other encumbrance which would
not be permitted by this Indenture, the Company or such successor Person, as
the case may be, shall take such steps as shall be necessary effectively to
secure the Securities equally and ratably with (or prior to) all indebtedness
secured thereby; and
(4) the Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such transaction
have been complied with.
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Section 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into,
any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor Person formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein, and thereafter, except in the case of a
lease, the predecessor Person shall be relieved of all obligations and covenants
under this Indenture and the Securities.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and in
the Securities; or
(2) to add to the covenants of the Company for the benefit of the Holders of
all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants are
expressly being included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of the Holders of
all or any series of Securities (and if such additional Events of Default are
to be for the benefit of less than all series of Securities, stating that such
additional Events of Default are expressly being included solely for the
benefit of such series); or
(4) 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, or to permit or facilitate the issuance of Securities
in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this Indenture in
respect of one or more series of Securities, provided that any such addition,
change or
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elimination (A) shall neither (i) apply to any Security of any series created
prior to the execution of such supplemental indenture and entitled to the
benefit of such provision nor (ii) modify the rights of the Holder of any such
Security with respect to such provision or (B) shall become effective only when
there is no such Security Outstanding; or
(6) to secure the Securities pursuant to the requirements of Section 1005 or
otherwise; or
(7) to establish the form or terms of Securities of any series as permitted
by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment hereunder by a
successor Trustee with respect to the Securities of one or more series and to
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, pursuant to the requirements of Section 611; or
(9) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising under
this Indenture, provided that such action pursuant to this Clause (9) shall not
adversely affect the interests of the Holders of Securities of any series in
any material respect.
Section 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than 66-2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the
rights of the Holders of Securities of such series under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any instalment of
principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of an Original Issue
Discount Security or any other Security which would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502, or
change any Place of Payment where, or the coin or currency in which, any
Security or any premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date), or
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(2) reduce the percentage in principal amount of the Outstanding Securities
of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or Section
1010, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent
of the Holder of each Outstanding Security affected thereby; provided, however,
that this clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and concomitant changes
in this Section and Section 1010, or the deletion of this proviso, in
accordance with the requirements of Sections 611 and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
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 covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
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Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform
to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Securities
that it will duly and punctually pay the principal of and any premium and
interest on the Securities of that series in accordance with the terms of the
Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company
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of its obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to
any series of Securities, it will, on or before each due date of the principal
of or any premium or interest on any of the Securities of that series, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, on or before each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other
than the Trustee 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, that such Paying Agent will (1) comply with the provisions of the
Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of or any premium or interest
on any Security of any series and remaining unclaimed for two years after such
principal, premium 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
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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,
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 1004. Maintenance of Support Agreement.
The Company covenants that it:
(1) will observe and perform in all material respects all covenants or
agreements of the Company contained in the Support Agreement;
(2) to the extent possible, will cause Alco Standard to observe and perform
in all material respects all covenants or agreements of Alco Standard contained
in the Support Agreement; and
(3) will not waive compliance under, amend in any material respect or
terminate the Support Agreement; provided, however, that the Support Agreement
may be amended or terminated if either (i) all the outstanding debt of the
Company is repaid or (ii) both Moody's Investor Service, Inc. and Standard &
Poor's Ratings Group confirm in writing prior to the effectiveness of any such
amendment or termination that the Company's debt rating would not be downgraded
as a result of any such amendment or termination.
Section 1005. Restriction on Creation of Secured Debt.
The Company will not at any time create, assume or guarantee any Secured Debt
without making effective provision (and the Company covenants that in such case
it will make or cause to be made effective provision) whereby the Securities of
any series then outstanding and, if the Company shall so determine, any other
indebtedness of or guaranteed by the Company, subject to applicable priorities
of payment, shall be secured by such mortgage, pledge, lien, security interest
or encumbrance equally and ratably with any and all other obligations and
indebtedness thereby secured, so long as any such other obligations and
indebtedness shall be so secured; provided, however, that the foregoing
covenants shall not be applicable to the following:
(a) (i) Any mortgage, pledge, lien, security interest or encumbrance on
any fixed asset or other physical or real property hereafter acquired
(including acquisition through merger or consolidation) or hereafter
constructed or improved by the
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Company and created, or for the creation of which a bona fide firm commitment
in writing was executed, prior to, contemporaneously with or within 180 days
after such acquisition or the completion of such construction or improvement
or the commencement of commercial operation or the placing in service of such
property by the Company, whichever is later, to secure or provide for the
payment of all or a part of the purchase price or cost of construction or
improvement of such property; or (ii) the acquisition of property subject to
any mortgage, pledge, lien, security interest or encumbrance upon such
property existing at the time of acquisition thereof, whether or not assumed
by the Company; or (iii) any mortgage, pledge, lien, security interest or
encumbrance on property of a corporation existing at the time such
corporation is merged into or consolidated with the Company or at the time of
a sale, lease or other disposition of the properties of a corporation or firm
as an entirety or substantially as an entirety to the Company; provided,
however, that the lien of any such mortgage, pledge, lien, security interest
or encumbrance permitted by clauses (ii) or (iii) of this subparagraph (a)
shall not extend to property owned by the Company prior to any event referred
to in such clauses or to other property thereafter acquired by the Company,
other than additions and improvements to the property referred to in such
clauses; or
(b) Mortgages, including mortgages, pledges, liens, security interests or
encumbrances, on property of the Company in favor of the United States of
America or any State thereof, or any department, agency or instrumentality or
political subdivision of the United States of America or any State thereof,
or in favor of any other country, or any department, agency or
instrumentality or political subdivision thereof, to secure partial,
progress, advance or other payments pursuant to any contract or statute or to
secure any indebtedness incurred for the purpose of financing all or any part
of the purchase price or the cost of construction or improvement of the
property subject to such mortgages; or
(c) Any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any mortgage, pledge, lien,
security interest or encumbrance referred to in the foregoing subparagraphs
(a) and (b); provided, however, that the principal amount of Secured Debt
secured thereby shall not exceed the principal amount outstanding at the time
of such extension, renewal or replacement, and that such extension, renewal
or replacement shall be limited to the property which secured the mortgage so
extended, renewed or replaced and additions to such property; or
(d) Any mortgage, pledge, lien, security interest or encumbrance securing
indebtedness owing by the Company to one or more Wholly-owned Subsidiaries.
Notwithstanding the foregoing provisions of this Section 1005, the Company
may create, assume or guarantee Secured Debt which would otherwise be subject to
the foregoing restrictions in an aggregate amount which, together with all other
Secured Debt of the Company which would otherwise be subject to the foregoing
restrictions (not including Secured Debt permitted to be secured under
subparagraphs (a) through (d) above), does not at the time exceed 5% of
Consolidated Net Tangible Assets.
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Section 1006. Statement by Officers as to Default.
(a) The Company will deliver to the Trustee, within 90 days after the end of
each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
(b) The Company will, so long as any of the Securities are outstanding,
deliver to the Trustee, forthwith upon any officer becoming aware of (i) any
default or Event of Default or (ii) any default or event of default on the part
of the Company under any other mortgage, indenture or instrument to which the
Company is a party, an Officers' Certificate specifying such default, Event of
Default or default and what action the Company is taking or proposes to take
with respect thereto.
Section 1007. Existence.
Subject to Article Eight, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its existence, rights
(charter and statutory) and franchises; provided, however, that the Company
shall not be required to preserve any such right or franchise if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
Section 1008. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of its
business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
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Section 1009. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary, and (2) all lawful claims
for labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
Section 1010. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for Securities
of such series, the Company may, with respect to the Securities of any series,
omit in any particular instance to comply with any term, provision or condition
set forth in any covenant provided pursuant to Section 301(18), 901(2) or 901(7)
for the benefit of the Holders of such series or in any of Sections 1004, 1005,
1008 or 1009 if before the time for such compliance the Holders of at least
66-2/3% in principal amount of the Outstanding Securities of such series shall,
by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to
the extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of any
such term, provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for such Securities) in accordance with
this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by a
Board Resolution or in another manner specified as contemplated by Section 301
for such Securities. In case of any redemption at the election of the Company of
less than all the Securities of any series (including any such redemption
affecting only a single Security),
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the Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date, of the principal amount of Securities of
such series to be redeemed and, if applicable, of the tenor of the Securities to
be redeemed. In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all
the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of a
portion of the principal amount of any Security of such series, provided that
the unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. If less than all the Securities of such series
and of a specified tenor are to be redeemed (unless such redemption affects only
a single Security), the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption as aforesaid and, in case of any Securities selected for
partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect
to any redemption affecting only a single Security, whether such Security is to
be redeemed in whole or in part. In the case of any such redemption in part, the
unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
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Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price (and accrued interest, if any),
(3) the CUSIP or other identifying number of the Securities to be redeemed,
(4) if less than all the Outstanding Securities of any series consisting of
more than a single Security are to be redeemed, the identification (and, in the
case of partial redemption of any such Securities, the principal amounts) of
the particular Securities to be redeemed and, if less than all the Outstanding
Securities of any series consisting of a single Security are to be redeemed,
the principal amount of the particular Security to be redeemed,
(5) that on the Redemption Date the Redemption Price and accrued interest, if
any, will become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said date,
(6) the place or places where each such Security is to be surrendered for
payment of the Redemption Price and accrued interest, if any, and
(7) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities which
are to be redeemed on that date.
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Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
If a Global Security is so surrendered, the Company shall execute, and the
Trustee shall authenticate and deliver to the Depositary as shall be specified
in the Company Order to the Trustee with respect thereto, without service
charge, a Global Security in a denomination equal to and in exchange for the
unredeemed portion of the principal amount of the Global Security so
surrendered.
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
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The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of
any Securities is herein referred to as a "mandatory sinking fund payment", and
any payment in excess of such minimum amount provided for by the terms of such
Securities is herein referred to as an "optional sinking fund payment". If
provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities as provided for by
the terms of such Securities.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment with respect
to any Securities of such series required to be made pursuant to the terms of
such Securities as and to the extent provided for by the terms of such
Securities; provided that the Securities to be so credited have not been
previously so credited. The Securities to be so credited shall be received and
credited for such purpose by the Trustee at the Redemption Price, as specified
in the Securities so to be redeemed, for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days prior to each such sinking fund payment date,
the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
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ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1302 or
Section 1303 applied to any Securities or any series of Securities, as the case
may be, designated pursuant to Section 301 as being defeasible pursuant to such
Section 1302 or 1303, in accordance with any applicable requirements provided
pursuant to Section 301 and upon compliance with the conditions set forth below
in this Article. Any such election shall be evidenced by a Board Resolution or
in another manner specified as contemplated by Section 301 for such Securities.
Section 1302. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations with
respect to such Securities as provided in this Section on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by such
Securities and to have satisfied all its other obligations under such Securities
and this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (1) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1304 and as more fully
set forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities when payments are due, (2) the Company's
obligations with respect to such Securities under Sections 304, 305, 306, 1002
and 1003, (3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder, including, without limitation, the rights set forth under Section 6
or 7, and (4) this Article. Subject to compliance with this Article, the Company
may exercise its option (if any) to have this Section applied to any Securities
notwithstanding the prior exercise of its option (if any) to have Section 1303
applied to such Securities.
Section 1303. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, (1)
the Company shall be released from its obligations under Section 801(3),
Sections 1004, 1005, 1008 or 1009 and any covenants provided pursuant to Section
301(18), 901(2) or 901(7) for the benefit of the Holders of such Securities, and
(2) the occurrence of any event specified in
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Sections 501(5) (with respect to any of Section 801(3), Sections 1004, 1005,
1008 or 1009 and any such covenants provided pursuant to Section 301(18), 901(2)
or 901(7)), 501(6) and 501(10) shall be deemed not to be or result in an Event
of Default, in each case with respect to such Securities as provided in this
Section on and after the date the conditions set forth in Section 1304 are
satisfied (hereinafter called "Covenant Defeasance"). For this purpose, such
Covenant Defeasance means that, with respect to such Securities, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such specified Section (to the extent
so specified in the case of Section 501(4)), whether directly or indirectly by
reason of any reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1302 or
Section 1303 to any Securities or any series of Securities, as the case may be:
(1) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefits of the Holders of such Securities, (A) money in an amount, or
(B) U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment, money in an
amount, or (C) a combination thereof, in each case sufficient, in the opinion
of a nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or any such other qualifying
trustee) to pay and discharge, the principal of and any premium and interest on
such Securities on the respective Stated Maturities, in accordance with the
terms of this Indenture and such Securities. As used herein, "U.S. Government
Obligation" means (x) any security which is (i) a direct obligation of the
United States of America for the payment of which the full faith and credit of
the United States of America is pledged or (ii) an obligation of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America the payment of which is unconditionally guaranteed as
a full faith and credit obligation by the United States of America, which, in
either case (i) or (ii), is not callable or redeemable at the option of the
issuer thereof, and (y) any depositary receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S.
Government Obligation which is specified in Clause (x) above and held by such
bank for the account of the holder of such depositary receipt, or with respect
to any specific payment of principal of or interest on any U.S. Government
Obligation which is so specified and held, provided that (except as required by
law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by
the custodian in respect of the U.S.
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Government Obligation or the specific payment of principal or interest
evidenced by such depositary receipt.
(2) In the event of an election to have Section 1302 apply to any Securities
or any series of Securities, as the case may be, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (A) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date of this instrument, there has been a change in the
applicable Federal income tax law, in either case (A) or (B) to the effect
that, and based thereon such opinion shall confirm that, the Holders of such
Securities will not recognize gain or loss for Federal income tax purposes as a
result of the deposit, Defeasance and discharge to be effected with respect to
such Securities and will be subject to Federal income tax on the same amount,
in the same manner and at the same times as would be the case if such deposit,
Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 1303 apply to any Securities
or any series of Securities, as the case may be, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the Holders
of such Securities will not recognize gain or loss for Federal income tax
purposes as a result of the deposit and Covenant Defeasance to be effected with
respect to such Securities and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be the case if
such deposit and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officer's Certificate
to the effect that neither such Securities nor any other Securities of the same
series, if then listed on any securities exchange, will be delisted as a result
of such deposit.
(5) No event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to such Securities or any other Securities
shall have occurred and be continuing at the time of such deposit or, with
regard to any such event specified in Sections 501(7) and (8), at any time on
or prior to the 90th day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to
have a conflicting interest within the meaning of the Trust Indenture Act
(assuming all Securities are in default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, any other agreement or instrument
to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the trust
arising from such deposit constituting an investment company within the meaning
of the Investment Company Act unless such trust shall be registered under such
Act or exempt from registration thereunder.
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(9) The Company shall have delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent with
respect to such Defeasance or Covenant Defeasance have been complied with.
Section 1305. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee pursuant to Section 1304 in respect of any Securities shall be held
in trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
such Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities, of all sums due and to
become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 1304 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or U.S. Government Obligations held by it as provided in Section 1304 with
respect to any Securities which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to such Securities.
Section 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance
with this Article with respect to any Securities by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1302 or 1303 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 1305 with respect to such Securities
in accordance with this Article; provided, however, that if the Company makes
any payment of principal of or any premium or interest on any such Security
following such reinstatement of its obligations, the Company shall be subrogated
to the rights (if any)
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of the Holders of such Securities to receive such payment from the money so held
in trust.
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In Witness Whereof, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
Alco Capital Resource, Inc.
By...................................
Attest:
......................................
Chemical Bank
By...................................
Attest:
......................................
-70-
<PAGE>
State of New York )
) ss.:
County of New York )
On the .... day of ..........., ...., before me personally came
..........................., to me known, who, being by me duly sworn, did
depose and say that he is .................... of
................................., one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
...............................................
State of New York )
) ss.:
County of New York )
On the .... day of ..........., ...., before me personally came
................, to me known, who, being by me duly sworn, did depose and say
that he is a ............... of .........................................., one
of the corporations described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he signed his name thereto by
like authority.
...............................................
-71-
<PAGE>
Exhibit 5
ALCO STANDARD CORPORATION
May 10, 1995
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street
Washington, D.C. 20549
Ladies and Gentlemen:
I am General Counsel and Secretary of Alco Standard Corporation and have
acted as counsel to Alco Capital Resource, Inc. ("Alco Capital") in connection
with Alco Capital's registration statement under the Securities Act of 1933, as
amended, on Form S-3 of its debt securities (the "Debt Securities") to be issued
in one or more series from time to time under an indenture (the "Indenture"),
between Alco Capital and Chemical Bank, as Trustee. In such connection, I have
reviewed such documents and made such investigation as I have deemed necessary
under the circumstances to render the following opinion.
Based upon such review and investigation, it is my opinion that the Debt
Securities, when duly authorized by all necessary corporate action, and when
issued in accordance with the Indenture, will constitute valid and legally
binding obligations of Alco Capital, enforceable in accordance with their
terms, subject to the laws concerning bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
I hereby consent to the filing of this opinion as an exhibit to the
registration statement filed by Alco Capital to effect such registration and the
reference to me therein under the heading "Validity of Debt Securities."
Sincerely,
/s/ J. Kenneth Croney
J. Kenneth Croney
<PAGE>
EXHIBIT 12.1
ALCO CAPITAL RESOURCES, INC.
RATIO OF EARNINGS TO FIXED CHARGES
(dollars in thousands)
<TABLE>
<CAPTION>
Fiscal Year Ended September 30
Six Months Ended ----------------------------------------------------------------
March 31, 1995 1994 1993 1992 1991 1990
---------------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C>
Earnings
Income from continuing operations 8,650 15,631 9,336 6,547 4,902 2,781
Add:
Provision for income taxes 5,377 9,794 6,218 4,033 3,155 1,533
Fixed charges 15,344 25,673 22,807 20,146 14,186 8,025
------ ------ ------ ------ ------ ------
Earnings, as adjusted (A) 29,371 51,098 38,361 30,726 22,243 12,339
====== ====== ====== ====== ====== ======
Fixed charges
Interest expense 15,200 25,559 22,701 20,068 14,126 8,003
Estimated interest component of
rental expense 144 114 106 78 60 22
------ ------ ------ ------ ------ ------
Total fixed charges (B) 15,344 25,673 22,807 20,146 14,186 8,025
====== ====== ====== ====== ====== ======
Ratio of earnings to fixed charges
(A) divided by (B) 1.9 2.0 1.7 1.5 1.6 1.5
=== === === === === ===
</TABLE>
<PAGE>
EXHIBIT 12.2
ALCO STANDARD CORPORATION AND SUBSIDIARIES
RATIO OF EARNINGS TO FIXED CHARGES
(dollars in thousands)
<TABLE>
<CAPTION>
Fiscal Year Ended September 30
Six Months Ended ------------------------------------------------
March 31, 1995 1994 1993 1992 1991 1990
---------------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C>
Earnings
Income from continuing operations 94,594 70,609 7,615 104,217 76,642 64,300
Add:
Loss from unconsolidated affiliate 117,158 2,538
Provision for income taxes 61,829 86,203 16,984 68,303 49,160 47,160
Fixed charges 59,306 101,779 86,615 70,168 68,748 66,361
------- ------- ------- ------- ------- -------
Earnings, as adjusted (A) 215,729 375,749 113,752 242,688 194,550 177,821
======= ======= ======= ======= ======= =======
Fixed charges
Other interest expense, including
interest on capital leases 43,594 71,780 63,851 51,203 53,173 52,942
Estimated interest component of
rental expense 15,712 29,999 22,764 18,965 15,575 13,419
------- ------- ------- ------- ------- -------
Total fixed charges (B) 59,306 101,779 86,615 70,168 68,748 66,361
======= ======= ======= ======= ======= =======
Ratio of earnings to fixed charges
(A) divided by (B) 3.6 3.7 1.3* 3.5 2.8 2.7
=== === === === === ===
</TABLE>
* Excluding the effect of the restructuring costs, the ratio of earnings to
fixed charges for fiscal 1993 is 3.3.
<PAGE>
EXHIBIT 12.3
ALCO STANDARD CORPORATION AND SUBSIDIARIES
RATIO OF EARNINGS TO FIXED CHARGES (EXCLUDING CAPTIVE FINANCE SUBSIDIARIES)
(dollars in thousands)
<TABLE>
<CAPTION>
Fiscal Year Ended September 30
Six Months Ended ------------------------------------------------
March 31, 1995 1994 1993 1992 1991 1990
---------------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C>
Earnings
Income from continuing operations 88,267 57,262 11,025 98,162 73,051 66,283
Add:
Loss from unconsolidated affiliate 117,158 2,538
Provision for income taxes 57,784 77,792 11,512 64,592 46,221 46,781
Fixed charges 42,565 73,751 62,535 50,595 52,951 55,189
------- ------- ------- ------- ------- -------
Earnings, as adjusted (A) 188,616 325,963 87,610 213,349 172,223 168,253
======= ======= ======= ======= ======= =======
Fixed charges
Other interest expense, including
interest on capital leases 26,997 43,802 40,189 31,680 37,426 41,792
Estimated interest component of
rental expense 15,568 29,949 22,346 18,915 15,525 13,397
------- ------- ------- ------- ------- -------
Total fixed charges (B) 42,565 73,751 62,535 50,595 52,951 55,189
======= ======= ======= ======= ======= =======
Ratio of earnings to fixed charges
(A) divided by (B) 4.4 4.4 1.4* 4.2 3.3 3.0
=== === === === === ===
</TABLE>
* Excluding the effect of the restructuring costs, the ratio of earnings to
fixed charges (excluding captive finance subsidiaries) for fiscal 1993 is 4.2.
<PAGE>
Exhibit 23.2
Consent of Ernst & Young LLP, Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 No. 33-_____) and related Prospectus of Alco
Capital Resource, Inc. for the registration of $1,000,000,000 of debt securities
and to the incorporation by reference therein of our report dated October 17,
1994, with respect to the financial statements of Alco Capital Resource, Inc.
included in its Annual Report (Form 10-K) for the year ended September 30, 1994,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Philadelphia, Pennsylvania
May 10, 1995
<PAGE>
Exhibit 24.1
POWER OF ATTORNEY
-----------------
The undersigned certifies that he is an Officer of Alco Capital Resource,
Inc. ("Alco Capital").
The undersigned hereby appoints each of O. Gordon Brewer, Jr., Kathleen
M. Burns, Michael J. Dillon and Robert M. Kearns as his attorneys-in-fact,
each with the power of substitution, to execute on his behalf the foregoing
Registration Statement on Form S-3 under the Securities Act of 1933 and
all amendments for filing with the Securities and Exchange Commission ("SEC"),
and to do all such other acts and execute all such other documents which
said attorneys-in-fact may deem necessary or desirable.
Dated this 10th day of May, 1995.
/s/ Richard P. Maier
--------------------
Richard P. Maier
<PAGE>
Exhibit 24.2
POWER OF ATTORNEY
-----------------
The undersigned certifies that he is an Officer of Alco Capital Resource,
Inc. ("Alco Capital").
The undersigned hereby appoints each of O. Gordon Brewer, Jr., Kathleen
M. Burns and Michael J. Dillon as his attorneys-in-fact, each with the power of
substitution, to execute on his behalf the foregoing Registration Statement on
Form S-3 under the Securities Act of 1933 and all amendments for filing with
the Securities and Exchange Commission ("SEC"), and to do all such other acts
and execute all such other documents which said attorneys-in-fact may deem
necessary or desirable.
Dated this 10th day of May, 1995.
/s/ Robert M. Kearns
--------------------
Robert M. Kearns
<PAGE>
Exhibit 24.3
POWER OF ATTORNEY
-----------------
The undersigned certifies that he is a Director of Alco Capital Resource,
Inc. ("Alco Capital").
The undersigned hereby appoints each of O. Gordon Brewer, Jr., Kathleen
M. Burns, Michael J. Dillon and Robert M. Kearns as his attorneys-in-fact,
each with the power of substitution, to execute on his behalf the foregoing
Registration Statement on Form S-3 under the Securities Act of 1933 and
all amendments for filing with the Securities and Exchange Commission ("SEC"),
and to do all such other acts and execute all such other documents which
said attorneys-in-fact may deem necessary or desirable.
Dated this 10th day of May, 1995.
/s/ Kurt E. Dinkelacker
-----------------------
Kurt E. Dinkelacker
<PAGE>
Exhibit 24.4
CERTIFICATION
I, J. Kenneth Croney, Secretary of Alco Capital Resource, Inc. do hereby
certify that the following resolutions were duly passed by the Board of
Directors of the corporation on January 25, 1995, and that such resolutions are,
as of the date hereof, in full force and effect:
RESOLVED, that each of the officers and directors of the
corporation is hereby authorized to appoint O. Gordon Brewer, Jr.,
Kathleen M. Burns, Michael J. Dillon and Robert M. Kearns as his or her
attorneys-in-fact on behalf of each of them each attorney-in-fact with
the power of substitution, to execute on such officer's or director's
behalf, one or more registration statements and annual reports of the
corporation for filing with the Securities and Exchange Commission
("SEC"), and any and all amendments to said documents which said
attorney may deem necessary or desirable to enable the corporation to
register the offering of (i) serial preferred stock; (ii)common stock;
(iii) debt securities; and/or (iv) participation interest in employee
benefit plans under the Federal securities law, and to further enable
the corporation to file such reports as are necessary under Section 13
or 15(d) of the Securities Exchange Act of 1934 and such other documents
as are necessary to comply with all rules, regulations or requirements
of the SEC in respect thereto; and
FURTHER RESOLVED, that any officer of the corporation is hereby
authorized to do and perform, or cause to be done or performed, any and
all things and to execute and deliver any and all agreements,
certificates, undertakings, documents or instruments necessary or
appropriate in order to carry out the purpose and intent of the
foregoing resolutions.
IN WITNESS WHEREOF, I have hereunto set my hand this 10th day of May
1995.
/s/J. Kenneth Croney
--------------------
J. Kenneth Croney
<PAGE>
EXHIBIT 25
- --------------------------------------------------------------------------------
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
-------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)__________
-------------------
CHEMICAL BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
-------------------
ALCO CAPITAL RESOURCE, INC.
(Exact name of obligor as specified in its charter)
Delaware 23-2493042
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1738 Bass Road
Macon, Georgia 31210
(Address of principal executive offices) (Zip Code)
-------------------
Debt Securities
(Title of the indenture securities)
- --------------------------------------------------------------------------------
<PAGE>
GENERAL
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. New York State Banking Department, State House,
Albany, New York 12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551 and Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
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.
-2-
<PAGE>
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 as now
in effect, including the Organization Certificate and the Certificates of
Amendment dated February 17, 1969, August 31, 1977, December 31, 1980,
September 9, 1982, February 28, 1985 and December 2, 1991 (see Exhibit 1
to Form T-1 filed in connection with Registration Statement No. 33-50010,
which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4
to Form T-1 filed in connection with Registration Statement No. 33-84460,
which is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the
Act (see Exhibit 6 to Form T-1 filed in connection with Registration Statement
No. 33-50010, which is incorporated by reference).
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.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Chemical Bank, a corporation organized and existing under the laws of
the State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of New York and State of New York, on the 4th day of May, 1995.
CHEMICAL BANK
By /s/ Josiane De Sousa
--------------------------------------
Josiane De Sousa
Assistant Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1994, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin......................................... $ 6,291
Interest-bearing balances................................. 5,484
Securities: ..................................................
Held to maturity securities................................... 6,313
Available for sale securities................................. 16,699
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold........................................ 1,922
Securities purchased under agreements to resell........... 0
Loans and lease financing receivables:
Loans and leases, net of unearned income $66,724
Less: Allowance for loan and lease losses 1,909
Less: Allocated transfer risk reserve.... 113
-------
Loans and leases, net of unearned income,
allowance, and reserve.................................... 64,702
Assets held in trading accounts............................... 25,685
Premises and fixed assets (including capitalized
leases)................................................... 1,409
Other real estate owned....................................... 248
Investments in unconsolidated subsidiaries and
associated companies...................................... 150
Customers' liability to this bank on acceptance
outstanding............................................... 1,064
Intangible assets............................................. 535
Other assets.................................................. 5,240
--------
TOTAL ASSETS.................................................. $135,742
========
</TABLE>
-4-
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices....................................... $ 47,044
Noninterest-bearing................................$16,782
Interest-bearing................................... 30,262
-------
In foreign offices, Edge and Agreement subsidiaries,
and IBF's................................................. 31,227
Noninterest-bearing................................$ 124
Interest-bearing................................... 31,103
-------
Federal funds purchased and securities sold under agree-
ments to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBF's
Federal funds purchased................................... 12,222
Securities sold under agreements to repurchase............ 1,428
Demand notes issued to the U.S. Treasury...................... 1,105
Trading liabilities........................................... 17,412
Other Borrowed money:
With original maturity of one year or less................ 7,500
With original maturity of more than one year.............. 916
Mortgage indebtedness and obligations under capitalized
leases.................................................... 22
Bank's liability on acceptances executed and outstanding...... 1,081
Subordinated notes and debentures............................. 3,410
Other liabilities............................................. 5,205
TOTAL LIABILITIES............................................. 128,572
--------
EQUITY CAPITAL
Common stock.................................................. 620
Surplus....................................................... 4,501
Undivided profits and capital reserves........................ 2,461
Net unrealized holding gains (losses)
on available-for-sale securities.............................. (410)
Cumulative foreign currency translation adjustments........... (2)
TOTAL EQUITY CAPITAL.......................................... 7,170
--------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL.................................. $135,742
========
</TABLE>
I, Joseph L. Sclafani, S.V.P. & Controller of the
above-named bank, do hereby declare that this Report of
Condition has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true to the best of my knowledge and
belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
WILLIAM B. HARRISON )
-5-
