AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 9, 1994
REGISTRATION NO. 33-55803
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------
AMERICAN GENERAL FINANCE CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
INDIANA 35-0416090
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
------------------------
601 N.W. SECOND STREET
EVANSVILLE, INDIANA 47708
(812) 424-8031
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
GARY M. SMITH, ESQ.
AMERICAN GENERAL FINANCE CORPORATION
P.O. BOX 59
EVANSVILLE, INDIANA 47701
(812) 468-5655
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
TIBOR D. KLOPFER, ESQ. JOHN H. NEWMAN, ESQ.
BAKER & DANIELS BROWN & WOOD
300 NORTH MERIDIAN STREET, SUITE 2700 ONE WORLD TRADE CENTER
INDIANAPOLIS, INDIANA 46204 NEW YORK, NEW YORK 10048
-------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: from time
to time after the effective date of this Registration Statement as determined in
light of market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
-------------------
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.
================================================================================
SUBJECT TO COMPLETION, DATED DECEMBER 9, 1994
$2,000,000,000
AMERICAN GENERAL FINANCE CORPORATION
DEBT SECURITIES AND WARRANTS TO PURCHASE DEBT SECURITIES
--------------
American General Finance Corporation (the "Company") may offer from time to
time, either jointly or separately, (i) up to $2,000,000,000 aggregate principal
amount of its debt securities (the "Debt Securities") and (ii) warrants (without
limitation as to number or offering price) to purchase such Debt Securities (the
"Warrants") (the Debt Securities and the Warrants being herein referred to
collectively as the "Securities"). The Debt Securities will be direct, unsecured
obligations of the Company and will rank equally with all other unsecured and
unsubordinated indebtedness of the Company. See "Description of Debt
Securities."
The Securities may be offered as separate series in amounts, at prices and
on terms to be determined at the time of sale. The title, aggregate principal
amount, initial public offering price, denominations, maturity, rate (which may
be fixed or variable) and time of payment of any interest, any terms for
redemption at the option of the Company or repayment at the option of the
holder, any terms for sinking fund payments, any listing on a securities
exchange, any exercise provisions and any other terms in connection with the
offering and sale of the Securities in respect of which this Prospectus is being
delivered will be set forth in one or more supplements to this Prospectus (each,
a "Prospectus Supplement").
The Company may sell the Securities directly, through agents designated from
time to time or through underwriters or dealers. If any agents of the Company or
any dealers or underwriters are involved in the sale of the Securities in
respect of which this Prospectus is being delivered, the names of such agents,
dealers or underwriters and any applicable agent's commission, dealer's purchase
price, or underwriter's discount will be set forth in, or may be calculated on
the basis set forth in, the applicable Prospectus Supplement. The net proceeds
to the Company from such sale will be the purchase price of such Securities less
such commission in the case of an agent, the purchase price of such Securities
in the case of a dealer or the public offering price less such discount in the
case of an underwriter, and less, in each case, other issuance expenses. See
"Plan of Distribution" for possible indemnification arrangements for any such
agents, dealers and underwriters.
-------------------
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.
-------------------
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF THE SECURITIES UNLESS
ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
-------------------
THE DATE OF THIS PROSPECTUS IS , 1994.
*******************************************************************************
* INFORMATION CONTAINED HEREIN IS 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. *
*******************************************************************************
<PAGE>
THE COMMISSIONER OF INSURANCE OF THE STATE OF NORTH CAROLINA HAS NOT
APPROVED OR DISAPPROVED THIS OFFERING NOR HAS THE COMMISSIONER PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Such reports and other information filed by the
Company may be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549, and at the Commission's Regional Offices at 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661 and Seven World Trade Center, Suite 1300,
New York, New York 10048. Copies of such materials may be obtained from the
Public Reference Section of the Commission at 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549, at prescribed rates. In addition, such material may also
be inspected and copied at the offices of the New York Stock Exchange, Inc., 20
Broad Street, New York, New York 10005.
The Company has filed with the Commission a registration statement on Form
S-3 (herein, together with all amendments and exhibits thereto, referred to as
the "Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus, which constitutes part of the Registration
Statement, does not contain all of the information set forth in the Registration
Statement, certain parts of which are omitted in accordance with the rules and
regulations of the Commission. For further information, reference is hereby made
to the Registration Statement. Statements contained herein concerning the
provisions of any document filed as an exhibit to the Registration Statement or
otherwise filed with the Commission are not necessarily complete, and in each
instance reference is made to the copy of such document so filed. Each such
statement is qualified in its entirety by such reference.
INCORPORATION BY REFERENCE
The following documents, which have been filed by the Company with the
Commission pursuant to the Exchange Act (File No. 1-6155), are incorporated by
reference into this Prospectus and shall be deemed to be a part hereof:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1993;
(b) the Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1994 (as amended by Form 10-Q/A dated May 19, 1994), June 30, 1994
and September 30, 1994; and
(c) the Company's Current Reports on Form 8-K dated February 1, 1994,
April 27, 1994, July 26, 1994 and October 25, 1994 (which relate to earnings
releases of the Company); and March 22, 1994, April 6, 1994, May 17, 1994,
June 8, 1994, September 26, 1994 and November 10, 1994 (which relate to
prior issuances of debt securities of the Company or to its Medium-Term
Notes, Series C).
Each document filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Securities made hereby shall be deemed to
be incorporated by reference into this Prospectus and to be a part hereof from
the date of filing of such document.
Any statement contained herein, in a Prospectus Supplement or in a document
incorporated or deemed to be incorporated by reference herein, shall be deemed
to be modified or superseded for purposes of the Registration Statement and this
Prospectus to the extent that a statement contained herein, in a Prospectus
Supplement or in any subsequently filed document which also is or is deemed to
be incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of the Registration Statement or
this Prospectus.
The Company files with the Commission Annual Reports on Form 10-K containing
financial information that has been audited and reported upon, with an opinion
expressed, by independent auditors. Such Annual Reports are available from the
Company upon request.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon the
written or oral request of such person, a copy of any or all of the documents
which are incorporated herein by reference, other than exhibits to such
documents (unless such exhibits are specifically incorporated by reference into
such documents). Requests should be directed to the Company, 2929 Allen Parkway,
Houston, Texas 77019, Attention: Treasury Department, telephone (713) 522-1111.
2
THE COMPANY
American General Finance Corporation is a financial services holding
company, the subsidiaries of which are engaged primarily in the consumer finance
and credit insurance businesses.
The Company was incorporated under the laws of the State of Indiana in 1927
as successor to a business started in 1920. All of the common stock of the
Company is owned by American General Finance, Inc. ("AGFI"), which was
incorporated under the laws of the State of Indiana in 1974. Since 1982, AGFI
has been a direct or indirect wholly-owned subsidiary of American General
Corporation, a consumer financial services organization incorporated in the
State of Texas in 1980 as the successor to American General Insurance Company, a
Texas insurance company incorporated in 1926.
At September 30, 1994, the Company and its subsidiaries had over 1,200
offices in 39 states, Puerto Rico and the Virgin Islands. Total finance
receivables, net of unearned finance charges, at September 30, 1994 were $6.3
billion.
The principal executive offices of the Company are located at 601 N.W.
Second Street, Evansville, Indiana 47708, and its telephone number is (812)
424-8031.
USE OF PROCEEDS
Except as may otherwise be provided in an applicable Prospectus Supplement,
the net proceeds to be received by the Company from the sale of the Securities
being offered hereby will be used to repay borrowings incurred in, or to finance
the growth of receivables arising in connection with, the Company's consumer
finance operations or will be available for the purchase of receivables or for
other general corporate purposes. Pending the uses described above, such net
proceeds may be temporarily invested in short-term marketable securities.
3
<PAGE>
SELECTED FINANCIAL INFORMATION
The following selected financial information is derived from consolidated
financial statements of the Company and its subsidiaries which have been audited
by Ernst & Young LLP, independent auditors. The information should be read in
conjunction with the consolidated financial statements, related notes, and other
financial information incorporated herein by reference. See "Incorporation by
Reference."
(DOLLARS IN THOUSANDS)
YEARS ENDED DECEMBER 31,
------------------------------------
1993 1992 1991
----------- ---------- --------
SELECTED FINANCIAL INFORMATION
Revenues:
Finance charges-------------- $ 974,276 $ 890,989 $801,040
Insurance-------------------- 142,333 118,950 110,069
Other------------------------ 96,308 82,919 82,296
----------- ---------- --------
Total revenues----------- 1,212,917 1,092,858 993,405
----------- ---------- --------
Expenses:
Interest expense------------- 368,986 378,679 375,349
Operating expenses----------- 304,037 280,605 243,619
Provision for finance
receivable losses---------- 133,577 107,608 96,732
Insurance losses and loss
adjustment expenses-------- 79,214 66,603 59,410
----------- ---------- --------
Total expenses----------- 885,814 833,495 775,110
----------- ---------- --------
Income before provision for
income taxes and cumulative
effect of accounting
changes------------------------ 327,103 259,363 218,295
Provision for income taxes------- 124,884 99,192 82,458
----------- ---------- --------
Income before cumulative effect
of accounting changes---------- 202,219 160,171 135,837
Cumulative effect of accounting
changes------------------------ (12,591) -- --
----------- ---------- --------
Net income--------------- $ 189,628 $ 160,171 $135,837
=========== ========== ========
DECEMBER 31,
------------------------------------
1993 1992 1991
---------- ---------- ----------
Finance receivables, net of
unearned finance charges----------- $5,871,648 $5,607,078 $5,137,942
Total assets------------------------- 7,504,798 6,999,570 6,464,519
Short-term debt---------------------- 1,647,461 1,718,839 2,030,070
Long-term debt----------------------- 3,965,772 3,558,401 2,776,561
Preferred stock---------------------- -- -- 4,000
Common shareholder's equity---------- 1,201,889 1,120,494 1,086,756
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the historical consolidated ratios of
earnings to fixed charges of the Company and its subsidiaries for the periods
indicated:
NINE MONTHS
ENDED YEARS ENDED DECEMBER 31,
SEPTEMBER 30, ----------------------------------------
1994 1993 1992 1991 1990 1989
---- ---- ---- ---- ---- ----
1.9 1.9 1.7 1.6 1.5 1.4
For purposes of computing the ratio of earnings to fixed charges, earnings
represent the aggregate of net income, provision for income taxes, cumulative
effect of accounting changes and fixed charges. Fixed charges represent interest
expense and implicit interest in rents.
4
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued under an Indenture dated as of October
1, 1994 (the "Indenture") between the Company and The Chase Manhattan Bank
(National Association), as trustee (the "Trustee").
The form of the Indenture is filed as an exhibit to the Registration
Statement of which this Prospectus is a part. The statements and descriptions
under this heading regarding provisions of the Debt Securities and the Indenture
are summaries thereof, do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all of the provisions of the
Indenture and the Debt Securities, including the definitions therein of certain
terms. Certain capitalized terms used herein are defined in the Indenture.
Wherever particular sections of the Indenture or terms that are defined in the
Indenture are referred to herein or in a Prospectus Supplement, it is intended
that such sections or defined terms shall be incorporated by reference herein or
therein, as the case may be.
The Indenture allows for the issuance of Debt Securities denominated in
foreign currencies and/or in bearer form. The Company does not intend to issue
any such Debt Securities pursuant to this Prospectus. Accordingly, certain
provisions of the Indenture relating to such Debt Securities are not described
herein.
GENERAL
The Debt Securities will be direct, unsecured and unsubordinated obligations
of the Company, and may be issued in one or more series. The particular terms of
each series of Debt Securities, as well as any modifications or additions to the
general terms of the Debt Securities as described herein which may be applicable
in the case of a particular series of Debt Securities, are described in the
Prospectus Supplement relating to such series of Debt Securities. Accordingly,
for a description of the terms of a particular series of Debt Securities,
reference must be made to both the Prospectus Supplement relating thereto and to
the description of Debt Securities set forth in this Prospectus.
Reference is made to the Prospectus Supplement for the following terms of
the Debt Securities being offered thereby: (1) the designation of such Debt
Securities; (2) any limit on the aggregate principal amount of such Debt
Securities and the series in which such Debt Securities shall be included; (3)
the percentage of their principal amount at which such Debt Securities will be
issued and, in the case of Original Issue Discount Securities, the principal
amount thereof payable upon acceleration of the maturity thereof; (4) the date
or dates on which such Debt Securities will mature or the manner in which such
dates are determined; (5) the rate or rates per annum (which may be fixed or
variable) at which such Debt Securities will bear interest, if any, or the
method of determining such rate or rates; (6) the date from which such interest,
if any, on such Debt Securities will accrue, the dates on which such interest,
if any, will be payable, the date on which payment of such interest, if any,
will commence and the record dates for such interest payment dates, if any; (7)
the terms of any mandatory or optional redemption (including any sinking fund
provisions or any provisions for repayment at the option of a Holder); (8)
whether such Debt Securities are to be issued initially or permanently in the
form of a global Debt Security and, if so, the identity of the Depository
(hereinafter defined) for such global Debt Security; and (9) any other terms of
such Debt Securities not inconsistent with the provisions of the Indenture. Debt
Securities may also be issued under the Indenture upon the exercise of Warrants.
See "Description of Warrants."
The Indenture does not limit the aggregate principal amount of Debt
Securities that may be issued thereunder or of any particular series of such
Debt Securities and provides that, in addition to the Debt Securities,
additional securities may be issued thereunder from time to time in one or more
series up to the aggregate principal amount which may be authorized from time to
time by the Company. (Section 301 of the Indenture) All Debt Securities issued
under the Indenture will rank equally and ratably with any additional Debt
Securities issued thereunder. Because the Company is a holding company, the
right of the Company, and hence the right of creditors of the Company (including
the Holders of the Debt Securities), to participate in any distribution of the
assets of any
5
subsidiary upon its liquidation or reorganization or otherwise is necessarily
subject to the prior claims of creditors of the subsidiary, except to the extent
that claims of the Company itself as a creditor of the subsidiary may be
recognized.
Unless the Prospectus Supplement relating to a particular issuance of Debt
Securities specifies otherwise, Debt Securities will be issued in denominations
of $1,000 and integral multiples thereof. No service charge will be made for any
transfer or exchange of Debt Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith. (Sections 302 and 305 of the Indenture)
Some of the Debt Securities may be issued under the Indenture as Original
Issue Discount Securities (bearing no interest or interest at a rate which at
the time of issuance is below market rates) to be sold at a substantial discount
below their stated principal amount. Federal income tax consequences and other
special considerations applicable to any such Original Issue Discount Securities
will be described in the Prospectus Supplement relating thereto.
Unless otherwise indicated in the Prospectus Supplement relating to a
particular series of Debt Securities, the principal of and any premium or
interest on Debt Securities issued in certificated form will be payable, and the
transfer of Debt Securities will be registrable, at the office of the Trustee
designated for that purpose in New York City, provided that, at the option of
the Company, interest may be paid by check, wire transfer or any other means
permitted in the form of such Debt Securities. In the case of global Debt
Securities (which will be registered in the name of the Depository or its
nominee), payment will be made to the Depository or its nominee in accordance
with the then-existing arrangements between the paying agent(s) for such global
Debt Securities and the Depository. See "-- Global Debt Securities." (Sections
305, 307 and 1002 of the Indenture)
The Indenture does not contain any provision that limits the ability of the
Company to incur indebtedness or that would afford Holders of Debt Securities
protection in the event of a highly leveraged or similar transaction involving
the Company, except as described herein under "-- Limitations on Liens" and
"-- Merger and Consolidation." Reference is made to the Prospectus Supplement
relating to the series of Debt Securities offered thereby for information with
respect to any deletions from, modifications of, or additions to, the Events of
Default or covenants that may be included in the terms of such series of Debt
Securities, including any addition of a covenant or other provision providing
event risk or similar protection.
Under the Indenture, the Company will have the ability, in addition to the
ability to issue Debt Securities with terms different from those of Debt
Securities previously issued, to "reopen" a previous issue of a series of Debt
Securities and issue additional Debt Securities of such series.
LIMITATIONS ON LIENS
The Indenture provides that neither the Company nor a Subsidiary shall
create, assume or suffer to exist, except in favor of the Company or a
Wholly-owned Subsidiary, any Mortgage upon any of its or their property, without
equally and ratably securing the Debt Securities, but this restriction does not
apply to certain permitted encumbrances described in the Indenture, including,
without limitation, (a) Mortgages existing on October 1, 1994, (b) any Mortgages
on properties or assets, in addition to those otherwise permitted, securing
Indebtedness which at the time incurred does not, together with all other
Indebtedness so secured and not otherwise permitted, exceed in the aggregate 10%
of Consolidated Net Worth, (c) any Mortgages on properties or assets securing
Indebtedness of Subsidiaries, created in the ordinary course of business by such
Subsidiaries, if, as a matter of practice, such Subsidiaries prior to becoming
Subsidiaries had incurred Indebtedness on a secured basis, (d) purchase money
Mortgages on property acquired or constructed by the Company or any of its
Subsidiaries after October 1, 1994 to secure the purchase price thereof (or to
secure Indebtedness incurred for the purpose of financing the acquisition or
construction thereof), Mortgages existing on any property at the time of
acquisition, Mortgages existing on any property of any corporation at the time
it becomes a Subsidiary, and any Mortgage with respect to property acquired
after October 1,
6
1994, in any amount (with respect to any Mortgage described in this clause (d))
not exceeding 75% of the cost of any property, including improvements thereon,
so acquired or constructed, (e) refundings or extensions of any permitted
Mortgage, and (f) any Mortgage created by the Company or any Subsidiary in
connection with a transaction intended by the Company or such Subsidiary to be
one or more sales of properties or assets of the Company or such Subsidiary;
provided that such Mortgage shall only apply to the properties or assets
involved in such sale or sales, the income therefrom and/or the proceeds
thereof. (Section 1009 of the Indenture) "Mortgage" means any mortgage, pledge,
lien, security interest, conditional sale or other title retention agreement or
other similar encumbrance. (Section 101 of the Indenture)
EVENTS OF DEFAULT, NOTICE AND WAIVER
If an Event of Default with respect to any Debt Securities of any series
Outstanding under the Indenture shall occur and be continuing, the Trustee or
the Holders of at least 25% in principal amount of the Debt Securities of that
series Outstanding may declare, by notice as provided in the Indenture, the
principal amount (or such lesser amount as may be provided for in the Debt
Securities of that series) of all the Debt Securities of that series Outstanding
to be due and payable immediately; provided, that in the case of an Event of
Default involving certain events in bankruptcy, insolvency or reorganization,
acceleration is automatic; and, provided further, that if all Events of Default
with respect to Debt Securities of that series shall have been cured, or waived
as hereinafter provided, and all amounts due otherwise than on account of such
acceleration shall have been paid or deposited with the Trustee, the Holders of
a majority in aggregate principal amount of the Debt Securities of that series
then Outstanding may rescind and annul such acceleration and its consequences.
(Section 502 of the Indenture) Upon acceleration of the Maturity of Original
Issue Discount Securities, an amount less than the principal amount thereof will
become due and payable. Reference is made to the Prospectus Supplement relating
to any Original Issue Discount Securities for the particular provisions relating
to acceleration of the Maturity thereof. Any past default under the Indenture
with respect to Debt Securities of any series, and any Event of Default arising
therefrom, may be waived by the Holders of a majority in principal amount of all
Debt Securities of such series Outstanding under the Indenture, except in the
case of (i) default in the payment of the principal of or any premium or
interest on any Debt Securities of such series or (ii) default in respect of a
covenant or provision which may not be amended or modified without the consent
of the Holder of each Outstanding Debt Security of such series affected.
(Section 513 of the Indenture)
An Event of Default with respect to any series of Debt Securities is defined
in the Indenture as being: (a) default in the payment of any interest upon any
Debt Security of such series when such interest becomes due and payable, and
continuance of such default for a period of 30 days; (b) default in the payment
of the principal of and any premium on any Debt Security of such series when it
becomes due and payable, whether at the Stated Maturity, upon redemption or
repayment, by declaration or otherwise; (c) default in the making of any sinking
fund payment on any Debt Security of such series; (d) default in the performance
or breach of any covenant or warranty of the Company contained in the Indenture
for the benefit of such series or in the Debt Securities of such series, and the
continuance of such default for 60 days after written notice has been given as
provided in the Indenture; (e) acceleration of the maturity of indebtedness for
money borrowed of the Company in a principal amount in excess of $25,000,000 if
such acceleration is not annulled or such indebtedness is not discharged within
10 days after written notice as provided in the Indenture; (f) certain events in
bankruptcy, insolvency or reorganization; and (g) any other Event of Default
provided with respect to the Debt Securities of such series. (Section 501 of the
Indenture)
The Trustee is required, within 90 days after the occurrence of a default
with respect to the Debt Securities of any series which is known to the Trustee
and is continuing (without regard to any grace period or notice requirements),
to give to the Holders of the Debt Securities of such series notice of such
default; provided, however, that, except in the case of a default in the payment
of the principal of or any premium or interest on any Debt Securities of such
series or in the payment of any sinking
7
fund installment with respect to the Debt Securities of such series, the Trustee
shall be protected in withholding such notice if it in good faith determines
that the withholding of such notice is in the interests of the Holders of the
Debt Securities of such series; and provided further that, in the case of any
default referred to in clause (d) of the preceding paragraph with respect to the
Debt Securities of such series, no such notice to Holders shall be given until
at least 30 days after the occurrence thereof. (Section 602 of the Indenture)
The Trustee, subject to its duties during default to act with the required
standard of care, may require indemnification by the Holders of the Debt
Securities of any series with respect to which a default has occurred before
proceeding to exercise any right or power under the Indenture at the request of
the Holders of the Debt Securities of such series. (Sections 601 and 603 of the
Indenture) Subject to such right of indemnification and to certain other
limitations, the Holders of a majority in principal amount of the Outstanding
Debt Securities of any series may 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 Debt Securities
of such series. (Section 512 of the Indenture)
The Company is required to furnish annually to the Trustee statements as to
the Company's compliance with all conditions and covenants under the Indenture.
(Section 1007 of the Indenture)
MERGER AND CONSOLIDATION
The Company may consolidate or merge with or into any other corporation, and
the Company may sell or transfer all or substantially all of its assets to
another corporation, provided that (a) the corporation (if other than the
Company) formed by, resulting from or surviving any such consolidation or merger
or which shall have received the transfer of such assets shall be a corporation
organized and existing under the laws of The United States of America or a state
thereof and shall assume payment of the principal of and any premium and
interest on the Debt Securities and the performance and observance of all of the
covenants and conditions of the Indenture to be performed or observed by the
Company and (b) the Company or such successor corporation, as the case may be,
shall not immediately thereafter be in default in the performance of any such
covenant or condition under the Indenture and shall not immediately thereafter
have outstanding (or otherwise be liable for) any Indebtedness secured by a
Mortgage not permitted by the provisions of Section 1009 of the Indenture or
shall have secured the Debt Securities equally and ratably with (or prior to)
any Indebtedness secured by any Mortgage not so permitted. (Section 801 of the
Indenture)
MODIFICATION AND WAIVER
Modification and amendment 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
principal amount of the Outstanding Debt Securities of each series affected
thereby, provided that no such modification or amendment may, without the
consent of the Holder of each Outstanding Debt Security affected thereby, (a)
change the Stated Maturity of the principal of, or any installment of principal
of or interest on, any Outstanding Debt Security; (b) reduce the principal
amount of or the rate of interest on or any premium payable with respect to any
Debt Security; (c) reduce the amount of principal of an Original Issue Discount
Security that would be due and payable upon acceleration of the Maturity thereof
or that would be provable in bankruptcy; (d) adversely affect any right of
repayment at the option of the Holder of any Debt Security; (e) change the place
or currency of payment of the principal of or any premium or interest on any
Debt Security; (f) impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity, or any date of redemption or
repayment, thereof; (g) reduce the above-stated percentage of Outstanding Debt
Securities of any series necessary to modify or amend the Indenture with respect
to such series or reduce the percentage of Outstanding Debt Securities of any
series necessary to waive any past default or compliance with certain
restrictive provisions to less than a majority of such series, or reduce the
requirements of Section 1404 of the Indenture for quorum or voting; or (h)
modify the provisions of the Indenture described in this
8
paragraph or those regarding waiver of compliance with certain provisions of, or
certain defaults and their consequences under, the Indenture, except to increase
the percentage of Outstanding Debt Securities necessary to modify and amend the
Indenture or to give any such waiver, and except to provide that certain other
provisions of the Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Debt Security affected thereby. The Holders of at
least a majority in principal amount of the Outstanding Debt Securities of any
series may waive compliance by the Company with certain restrictive provisions
applicable to such series. (Sections 902 and 1010 of the Indenture)
Modification and amendment of the Indenture may be made by the Company and
the Trustee without the consent of any Holder of Outstanding Debt Securities,
for any of the following purposes: (a) to evidence the succession of another
corporation to the Company and the assumption of the covenants of the Company;
(b) to add to the covenants of the Company for the benefit of the Holders of all
or any series of Debt Securities or to surrender any right or power conferred
upon the Company; (c) to add any additional Events of Default with respect to
all or any series of Debt Securities; (d) to change or eliminate any
restrictions on the payment of the principal of or any premium or interest on
Debt Securities or to permit the issuance of Debt Securities in uncertificated
form, provided any such action does not adversely affect the interests of the
Holders of the Debt Securities of any series in any material respect; (e) to
change or eliminate any provision of the Indenture, provided that no Outstanding
Debt Security of any series is entitled to the benefit of such provision; (f) to
secure the Debt Securities pursuant to the requirements of Sections 801 or 1009
of the Indenture or otherwise; (g) to establish the form or terms of the Debt
Securities of any series; (h) to provide for the acceptance of appointment by a
successor Trustee with respect to the Debt Securities of one or more series and
to add to or change any of the provisions as shall be necessary to provide for
or facilitate the administration of the trusts under the Indenture by more than
one Trustee; (i) to change the conditions, limitations and restrictions on the
authorized amount, terms or purposes of issuance, authentication and delivery of
the Debt Securities as set forth in the Indenture, the Debt Securities and the
Prospectus Supplement relating thereto; or (j) to cure any ambiguity, defect or
inconsistency in the Indenture, provided such action does not adversely affect
the interests of the Holders of the Debt Securities of any series in any
material respect. (Section 901 of the Indenture)
DEFEASANCE AND DISCHARGE
The Indenture provides that the Company and the Trustee, without the consent
of any Holder of Outstanding Debt Securities, may execute a supplemental
indenture to provide that the Company will be discharged from any and all
obligations in respect of the Debt Securities of any series (except for certain
obligations to register the transfer or exchange of Debt Securities, to replace
stolen, lost or mutilated Debt Securities, to maintain paying agencies and hold
moneys for payment in trust) upon the deposit with the Trustee, in trust, of
money or Government Obligations, or a combination thereof, which through the
payment of interest and principal thereof in accordance with their terms will
provide money in an amount sufficient to pay the principal of, any premium and
interest on, and any mandatory sinking fund payments in respect of, the Debt
Securities of such series on the Stated Maturity of such payments in accordance
with the terms of the Indenture and such Debt Securities. Such a supplemental
indenture may only be executed if the Company has received from, or there has
been published by, the United States Internal Revenue Service a ruling, or if
there has been a change in the applicable federal income tax law, in either
case, to the effect that such a discharge will not cause the Holders of the Debt
Securities of such series to recognize income, gain or loss for federal income
tax purposes; and the provisions of such a supplemental indenture shall not be
applicable to any series of Debt Securities then listed on the New York Stock
Exchange if the provisions would cause the Outstanding Debt Securities of such
series to be delisted. (Section 901 of the Indenture)
The Indenture provides that, when the conditions set forth in Section 401
thereof have been satisfied, upon the request of the Company, the Indenture will
cease to be of further effect (except as to any surviving right of registration
of transfer or exchange of Debt Securities expressly provided for
9
therein). Such conditions include that (i) all Debt Securities issued under the
Indenture either shall have been delivered to the Trustee for cancellation or
shall be due, or are to be called for redemption, within one year and (ii) with
respect to all Debt Securities issued under the Indenture but not previously
delivered to the Trustee for cancellation, there shall have been delivered to
the Trustee, in trust, money or Government Obligations, or a combination
thereof, which through the payment of interest and principal thereof in
accordance with their terms will provide money in an amount sufficient to pay
the principal of, and any premium and interest on, all such Debt Securities on
the Stated Maturity of such payments in accordance with the Indenture. (Section
401 of the Indenture)
DEFEASANCE OF CERTAIN COVENANTS
The terms of the Debt Securities of any series may provide the Company with
the option to omit to comply with the covenants described under "-- Limitations
on Liens" above and any additional covenants not included in the Indenture that
may be specified as applicable to such series in the Prospectus Supplement with
respect thereto. If such terms make such option available with respect to the
Debt Securities of any series, the Company, in order to exercise such option,
will be required to deposit with the Trustee, in trust, money or Government
Obligations, or a combination thereof, which through the payment of interest and
principal thereof in accordance with their terms will provide money in an amount
sufficient to pay the principal of, any premium and interest on, and any
mandatory sinking fund payments in respect of, the Debt Securities of such
series on the Stated Maturity of such payments in accordance with the terms of
the Indenture and such Debt Securities. The Company will also be required to
deliver to the Trustee an Opinion of Counsel to the effect that the deposit and
related covenant defeasance will not cause the Holders of the Debt Securities of
such series to recognize income, gain or loss for federal income tax purposes.
Such covenant defeasance would not be available with respect to any series of
Debt Securities then listed on the New York Stock Exchange if such defeasance
would cause the Outstanding Debt Securities of such series to be delisted.
(Section 1011 of the Indenture) The Prospectus Supplement relating to a
particular issuance of Debt Securities may further describe the provisions, if
any, permitting such an omission to comply.
GLOBAL DEBT SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global Debt Securities that will be deposited with, or on
behalf of, a depositary (the "Depository") identified in the Prospectus
Supplement relating to such series. Unless and until it is exchanged in whole or
in part for the individual Debt Securities represented thereby, a global Debt
Security may not be transferred except as a whole among the Depository, any
successor Depository and their respective nominees.
The specific terms of the depository arrangement with respect to a series of
Debt Securities will be described in the Prospectus Supplement relating to such
series. Unless otherwise indicated in the applicable Prospectus Supplement, the
following provisions will apply to all depository arrangements.
Upon the issuance of a global Debt Security, the Depository for such global
Debt Security or its nominee will credit, on its book-entry registration and
transfer system, the respective principal amounts of the individual Debt
Securities represented by such global Debt Security to the accounts of persons
that have accounts with such Depository ("Participants"). Such accounts will be
designated by the underwriters or agents with respect to such Debt Securities or
by the Company if such Debt Securities are offered and sold directly by the
Company. Ownership of beneficial interests in a global Debt Security will be
limited to Participants or persons that may hold interests through Participants.
Ownership of beneficial interests in such global Debt Security will be shown on,
and the transfer of that ownership will be effected only through, records
maintained by the applicable Depository or its nominee (with respect to
interests of Participants) and the records of Participants (with respect to
interests of persons other than Participants). The laws of some states may
require that certain purchasers of securities take physical delivery of such
securities in definitive form. Such limitation and such laws may impair the
ability to transfer beneficial interests in a global Debt Security.
10
So long as the Depository for a global Debt Security, or its nominee, is the
registered owner of such global Debt Security, such Depository or such nominee,
as the case may be, will be considered the sole owner or Holder of the Debt
Securities represented by such global Debt Security for all purposes under the
Indenture. Except as provided below, owners of beneficial interests in a global
Debt Security will not be entitled to have any of the individual Debt Securities
of the series represented by such global Debt Security registered in their
names, will not receive or be entitled to receive physical delivery of such Debt
Securities in definitive form, and will not be considered the owners or Holders
thereof under the Indenture.
Payments of principal of, premium, if any, and interest, if any, on
individual Debt Securities represented by a global Debt Security registered in
the name of a Depository or its nominee will be made to the Depository or its
nominee, as the case may be, as the registered owner of the global Debt Security
representing such Debt Securities. Neither the Company, the Trustee, any Paying
Agent, nor the Security Registrar for such Debt Securities will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of the global Debt
Security for such Debt Securities or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
The Company expects that the Depository for a series of Debt Securities, or
its nominee, upon receipt of any payment of principal, premium or interest in
respect of a global Debt Security representing any of such Debt Securities, will
immediately credit Participants' accounts with payments in amounts proportionate
to their respective beneficial interests in the principal amount of such global
Debt Security for such Debt Securities as shown on the records of such
Depository or its nominee. The Company also expects that payments by
Participants to owners of beneficial interests in such global Debt Security held
through such Participants will be governed by standing instructions and
customary practices, as is now the case with securities registered in "street
name." Such payments will be the responsibility of such Participants.
If the Depository for a series of Debt Securities is at any time unwilling,
unable or ineligible to continue as depositary and a successor depositary is not
appointed by the Company within 90 days or if the Company executes and delivers
to the Trustee a Company Order to the effect that a global Debt Security shall
be exchangeable for certificated Debt Securities or if an Event of Default has
occurred and is continuing with respect to a series of Debt Securities, the
Company will issue individual certificated Debt Securities of such series in
definitive form in exchange for the global Debt Security or Debt Securities
representing such series of Debt Securities. Accordingly, the Company may at any
time and in its sole discretion, subject to any limitations described in the
Prospectus Supplement relating to such Debt Securities, determine not to have
any Debt Securities of a series represented by one or more global Debt
Securities and, in such event, will issue individual certificated Debt
Securities of such series in definitive form in exchange for the global Debt
Security or Debt Securities representing such series of Debt Securities. In any
such instance, the individual certificated Debt Securities of such series issued
by the Company will be issued to Participants, as directed by the Depository or
its nominee, or to the beneficial owners holding Debt Securities of such series
through such Participants, as directed by such Participants, all in accordance
with standing instructions and customary practices, as is now the case with
securities registered in "street name." Certificated Debt Securities of such
series so issued in definitive form will be issued in denominations, unless
otherwise specified by the Company, of $1,000 and integral multiples thereof.
MISCELLANEOUS
No Holder of a Debt Security of any series may institute any action against
the Company under the Indenture (except actions for payment of overdue principal
of, premium, if any, or interest on such Debt Securities) unless the Holders of
at least 25% of the principal amount of the Debt Securities of that series then
Outstanding under the Indenture shall have requested the Trustee to institute
such action and offered to the Trustee reasonable indemnity against the costs,
expenses and liabilities to be
11
incurred in compliance with such request and the Trustee shall not have
instituted such action within 60 days of such request. (Sections 507 and 508 of
the Indenture)
THE TRUSTEE UNDER THE INDENTURE
The Company and certain of its affiliates maintain banking and borrowing
relations with The Chase Manhattan Bank (National Association).
The Indenture provides that an alternative Trustee may be appointed by the
Company with respect to any particular series of Debt Securities. Any such
appointment will be described in the Prospectus Supplement relating to such
series of Debt Securities.
DESCRIPTION OF WARRANTS
The Company may issue, together with Debt Securities or separately, Warrants
for the purchase of Debt Securities. Any Warrants are to be issued under Warrant
Agreements (each a "Warrant Agreement") to be entered into between the Company
and a bank or trust company, as Warrant Agent (the "Warrant Agent"), all as
shall be set forth in the Prospectus Supplement relating to Warrants being
offered thereby. A copy of the form of Warrant Agreement, including the forms of
Warrant Certificates representing the Warrants (the "Warrant Certificates"),
reflecting the alternative provisions to be included in the Warrant Agreements
that will be entered into with respect to particular offerings of Warrants, is
filed as an exhibit to the Registration Statement. The following summaries of
certain provisions of the Warrant Agreement and the Warrant Certificates do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all the provisions of the Warrant Agreement and the Warrant
Certificates, respectively, including the definitions therein of certain terms.
The form of Warrant Agreement allows for the issuance of Warrants in foreign
currencies and/or in bearer form. The Company does not intend to issue any such
Warrants pursuant to this Prospectus. Accordingly, certain provisions of the
form of Warrant Agreement relating to such Warrants are not described herein.
GENERAL
The applicable Prospectus Supplement will describe the terms of Warrants
offered thereby, the Warrant Agreement relating to such Warrants and the Warrant
Certificates representing such Warrants, including the following: (1) the
designation, aggregate principal amount, denominations and terms of the series
of Debt Securities purchasable upon exercise of such Warrants and the procedures
and conditions relating to the exercise of such Warrants; (2) the designation
and terms of any related series of Debt Securities with which such Warrants are
issued and the number of such Warrants issued with each such Debt Security; (3)
the date, if any, on and after which such Warrants and the related Debt
Securities will be separately transferable; (4) the principal amount of the
series of Debt Securities purchasable upon exercise of each such Warrant and the
price at which such principal amount of Debt Securities may be purchased upon
such exercise and whether such Debt Securities may be purchased for
consideration other than cash; (5) the date on which the right to exercise such
Warrants shall commence and the date on which such right shall expire (the
"Expiration Date"); (6) if the series of Debt Securities purchasable upon
exercise of such Warrants are Original Issue Discount Securities, a discussion
of Federal income tax considerations applicable thereto; (7) where the Warrant
Certificates may be transferred and registered; and (8) any other terms of the
Warrants.
Warrant Certificates will be exchangeable for new Warrant Certificates of
different denominations at the corporate trust office of the Warrant Agent or
any other office indicated in the applicable Prospectus Supplement. Prior to the
exercise of Warrants, holders of such Warrants will not have any of the rights
of Holders of the Debt Securities purchasable upon such exercise and will not be
entitled to payments of principal of or any premium or interest on the Debt
Securities purchasable upon such exercise.
12
EXERCISE OF WARRANTS
Each Warrant will entitle the Holder to purchase for cash or specified
securities such principal amount of the related series of Debt Securities at
such exercise price as shall in each case be set forth in, or be determinable as
set forth in, the Prospectus Supplement relating to the Warrants offered
thereby. Warrants may be exercised as set forth in the Prospectus Supplement
relating to the Warrants offered thereby and may be so exercised up to the close
of business on the Expiration Date set forth in such Prospectus Supplement.
After the close of business on the Expiration Date, unexercised Warrants will
become void.
Warrants may be exercised by delivery to the Warrant Agent of payment as
provided in the applicable Prospectus Supplement of the amount required to
purchase the Debt Securities purchasable upon such exercise together with
certain information set forth in the Warrant Certificate. Warrants will be
deemed to have been exercised upon receipt of the exercise price, subject to the
receipt within five business days of the Warrant Certificate representing such
Warrants. Upon receipt of the requisite payment and the Warrant Certificate
properly completed and duly executed at the corporate trust office of the
Warrant Agent or any other office indicated in the applicable Prospectus
Supplement, the Company will, as soon as practicable, issue and deliver pursuant
to the Indenture the Debt Securities purchasable upon such exercise. If less
than all of the Warrants represented by such Warrant Certificate are exercised,
a new Warrant Certificate will be issued for the remaining amount of Warrants.
PLAN OF DISTRIBUTION
GENERAL
The Company may sell the Securities to or through underwriters or dealers;
directly to other purchasers; or through agents. Any such underwriter, dealer or
agent involved in the offer and sale of the Securities will be named in an
applicable Prospectus Supplement or Prospectus Supplements (including any
Pricing Supplement or Pricing Supplements).
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or 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 Securities, underwriters may receive
compensation from the Company or from purchasers of Securities for whom they may
act as agents, in the form of discounts, concessions or commissions.
Underwriters may sell Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions from the purchasers for whom they may act as
agent. Underwriters, dealers and agents that participate in the distribution of
Securities may be deemed to be underwriters, and any discounts or commissions
received by them from the Company and any profit on the resale of Securities by
them may be deemed to be underwriting discounts and commissions, under the
Securities Act. Any compensation paid by the Company to underwriters, dealers or
agents in connection with the offering of the Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be described in an applicable Prospectus Supplement or Pricing Supplement.
Under agreements which may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of Securities may be
entitled to indemnification by the Company against and/or contribution by the
Company toward certain liabilities, including liabilities under the Securities
Act.
The Company has reserved the right to sell the Securities through AGF
Investment Corp. ("AGFIC"), an affiliate of the Company which may, as an agent
acting on a best efforts basis, solicit offers to purchase the Securities in
those jurisdictions where it is authorized to do so. No commissions will be
payable to AGFIC. AGFIC's business is limited to the solicitation of offers to
purchase
13
securities of the Company and the Company's parent, American General Finance,
Inc. AGFIC utilizes as salespersons full-time employees of the Company and
American General Corporation, who continue to receive their regular salaries for
the continued performance of their regular duties. The Company intends to pay
all direct expenses associated with sales of Securities through AGFIC. The
offering of the Securities will be conducted in compliance with any applicable
requirements of Schedule E of the By-Laws of the National Association of
Securities Dealers, Inc. ("NASD") regarding the distribution by an NASD member
firm of the securities of an affiliate. In accordance with Section 12 of such
Schedule E, underwriters, dealers and agents who participate in the distribution
of Securities will not engage in transactions in Securities for any
discretionary account without the prior specific written approval of the
customer.
DELAYED DELIVERY ARRANGEMENTS
If so indicated in a Prospectus Supplement, the Company will authorize
underwriters, dealers or other persons acting as the Company's agents to solicit
offers by certain institutions to purchase Securities from the Company pursuant
to contracts providing for payment and delivery on a future date. Institutions
with which such contracts may be made include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable institutions and others, but in all cases such institutions must be
approved by the Company. The obligations of any purchaser under any such
contract will be subject to the condition that the purchase of the Securities
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which such purchaser is subject. The underwriters and such other
agents will not have any responsibility in respect of the validity or
performance of such contracts.
LEGAL OPINIONS
Unless otherwise indicated in a Prospectus Supplement, the validity of each
issue of the Securities will be passed upon for the Company by Baker & Daniels,
Indianapolis, Indiana, and certain legal matters relating to the Securities
offered hereby will be passed upon for any underwriters or agents by Brown &
Wood, New York, New York. Brown & Wood may rely as to matters of Indiana law on
the opinion of Baker & Daniels.
EXPERTS
The consolidated financial statements of the Company and its subsidiaries
appearing in the Company's Annual Report on Form 10-K for the year ended
December 31, 1993 have been audited by Ernst & Young LLP, independent auditors,
as set forth in their report thereon included therein and incorporated herein by
reference. See "Incorporation by Reference." Such financial statements are, and
audited financial statements to be included in subsequently filed documents will
be, incorporated herein by reference in reliance upon the reports of Ernst &
Young LLP, pertaining to such financial statements (to the extent covered by
consents filed with the Commission) given upon the authority of such firm as
experts in accounting and auditing.
14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS.
The following exhibits are filed as part of this Registration Statement:
1 Form of Underwriting Agreement (including form of Pricing
Agreement and Delayed Delivery Contract) relating to the Debt
Securities.
4(a) Form of Indenture between the Company and The Chase Manhattan Bank
(National Association), Trustee. The form or forms of Debt
Securities with respect to each particular offering will be filed
as an exhibit to a Current Report on Form 8-K and incorporated
herein by reference.
4(b) Form of Warrant Agreement, including forms of Warrant
Certificates.
* 5 Opinion and consent of Baker & Daniels, special counsel for the
Company, as to the legality of the Securities.
12 Computation of ratio of earnings to fixed charges.
*23(a) Consent of Baker & Daniels (contained in their opinion in
Exhibit 5).
23(b) Consent of Ernst & Young LLP, Independent Auditors.
*24 Powers of Attorney.
*25 Form T-1 Statement of Eligibility of The Chase Manhattan Bank
(National Association), Trustee under the Indenture.
*Previously filed
II-1
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 OR AMENDMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF EVANSVILLE, STATE OF INDIANA, ON THE 9TH DAY OF
DECEMBER, 1994.
AMERICAN GENERAL FINANCE CORPORATION
By PHILIP M. HANLEY
(PHILIP M. HANLEY, SENIOR
VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT OR AMENDMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN
THE CAPACITIES INDICATED ON DECEMBER 9, 1994.
SIGNATURE TITLE
Chairman and Chief Executive
DANIEL LEITCH III Officer and Director
(DANIEL LEITCH III) (principal executive officer)
Senior Vice President and Chief
PHILIP M. HANLEY Financial Officer and Director
(PHILIP M. HANLEY) (principal financial officer)
Controller and
GEORGE W. SCHMIDT Assistant Secretary
(GEORGE W. SCHMIDT) (principal accounting officer)
WAYNE D. BAKER* Director
(WAYNE D. BAKER)
BENNIE D. HENDRIX* Director
(BENNIE D. HENDRIX)
JAMES R. JERWERS* Director
(JAMES R. JERWERS)
LARRY R. KLAHOLZ* Director
(LARRY R. KLAHOLZ)
Director
(JON P. NEWTON)
DAVID C. SEELEY* Director
(DAVID C. SEELEY)
JAMES R. TUERFF* Director
(JAMES R. TUERFF)
PETER V. TUTERS* Director
(PETER V. TUTERS)
Director
(ROBERT D. WOMACK)
*By GARY M. SMITH
(GARY M. SMITH, ATTORNEY-IN-FACT)
II-2
EXHIBIT 1
AMERICAN GENERAL FINANCE CORPORATION
DEBT SECURITIES AND WARRANTS TO PURCHASE DEBT SECURITIES
UNDERWRITING AGREEMENT
American General Finance Corporation, an Indiana corporation (the
"Company"), proposes to issue and sell from time to time certain of its
unsecured, unsubordinated debt securities (the "Debt Securities") and/or
Warrants (the "Warrants") to purchase Debt Securities registered under the
registration statement referred to in Section 1(a) below (the Debt Securities
and Warrants shall be referred to herein, individually or together, as the
"Registered Securities"). The Debt Securities will be issued under an indenture,
dated as of October 1, 1994 (the "Indenture"), between the Company and The Chase
Manhattan Bank (National Association), as Trustee (the "Trustee"). The Warrants
will be issued under one or more warrant agreements (the warrant agreement
relating to any issue of Warrants to be sold pursuant to this Underwriting
Agreement (this "Agreement") will be identified in the applicable Pricing
Agreement (as hereinafter defined) and is referred to herein as the "Warrant
Agreement") between the Company and the warrant agent identified in such Warrant
Agreement (the "Warrant Agent"). The Registered Securities will be issued in one
or more series which may vary as to aggregate principal amounts, interest rates,
maturities, sinking fund requirements, redemption provisions, selling prices,
exercise provisions and any other terms which the Indenture or any Warrant
Agreement, as the case may be, contemplates may be contained in the Registered
Securities as issued from time to time. Particular series of the Registered
Securities may be sold pursuant to a Pricing Agreement substantially in the form
set forth in Annex I hereto (the "Pricing Agreement"), subject to the terms and
conditions set forth therein and herein. The Pricing Agreement will incorporate
by reference the provisions of this Agreement, except as otherwise provided
therein. The Debt Securities and the Warrants may be offered either together or
separately.
The Registered Securities that are the subject of a particular Pricing
Agreement are referred to herein as the "Securities;" provided that the Debt
Securities issuable upon exercise of Warrants are referred to herein as "Warrant
Securities." The firm or firms named in Schedule I to the Pricing Agreement are
referred to herein as the "Underwriters," and the representative or
representatives of the Underwriters, if any, specified in the Pricing Agreement
are referred to herein as the "Representatives;" provided, however, that if the
Pricing Agreement does not specify any representative of the Underwriters, the
term "Representatives" shall mean the Underwriters.
As provided in Section 2 below, the Pricing Agreement may authorize the
Underwriters to solicit offers from certain investors to purchase Securities
from the Company pursuant to delayed delivery contracts ("Delayed Delivery
Contracts"). Securities to be purchased pursuant to Delayed Delivery Contracts
are sometimes referred to herein as "Contract Securities," and Securities to be
purchased by the Underwriters (after giving effect to the deduction, if any, for
Contract Securities) are sometimes referred to herein as "Underwriters'
Securities."
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement (No. 33-55803) on Form S-3
relating to the Registered Securities, including the Securities, and
all post-effective amendments thereto required to the date of the
Pricing Agreement, have been filed with the Securities and Exchange
Commission (the "Commission") in the form heretofore delivered or to be
delivered to the Representatives (and, excluding exhibits to such
registration statement, but including all documents incorporated by
reference in the prospectus contained therein on or prior to the date
of the Pricing Agreement, to the Representatives for each of the other
Underwriters) and such registration statement and each such amendment
thereto, if any, have been declared effective by the Commission and no
stop order suspending the effectiveness thereof has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission. For purposes of this Agreement, (i) the term "Registration
Statement" shall mean the foregoing registration statement, including
all exhibits thereto and all documents incorporated by reference
therein as of the effective date thereof; and any reference to the
Registration Statement as amended (or similar wording) shall mean the
Registration Statement, including all post-effective amendments thereto
and all documents filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), after the effective date of the
Registration Statement and that are deemed to be incorporated by
reference in the Registration Statement upon the filing of such
documents with the Commission; (ii) the term "Prospectus" shall mean
the prospectus, including all documents incorporated by reference
therein as of the date thereof, relating to the Registered Securities
in the form included in the Registration Statement as of the effective
date thereof or, if different, in the form in which it has most
recently been filed or transmitted for filing with the Commission on or
prior to the date of the Pricing Agreement, as amended or supplemented
to reflect the terms of the offering of the Securities by the
Prospectus Supplement contemplated by Section 3(a) hereof, in the form
in which such Prospectus Supplement is filed with the Commission
pursuant to Rule 424(b) under the Securities Act of 1933, as amended
(the "Act"), in accordance with Section 3(a) hereof; any reference to
the date of the Prospectus shall be deemed to refer to the date of such
Prospectus Supplement; and any reference to the Prospectus as amended
or supplemented (or similar wording) shall mean the Prospectus,
including all supplements thereto and all documents filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of the Prospectus and that are
deemed to be incorporated by reference in the Prospectus upon the
filing of such documents with the Commission; and (iii) the term
"Preliminary Prospectus" shall mean any preliminary prospectus,
including all documents incorporated by reference therein as of the
date thereof, included in the registration statement prior to the
effectiveness thereof or filed with the Commission pursuant to Rule
424(a) under the Act; and any reference to any Preliminary Prospectus
as amended or supplemented (or similar wording) shall mean such
Preliminary Prospectus, including all documents filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act after the date of such Preliminary Prospectus and that
are
-2-
deemed to be incorporated by reference in the Preliminary Prospectus
upon the filing of such documents with the Commission;
(b) The documents incorporated by reference in the Prospectus,
as amended or supplemented, when they were filed with the Commission,
conformed in all material respects to the requirements of the Exchange
Act and the rules and regulations of the Commission thereunder, and,
when read together with the other information included or incorporated
by reference in the Prospectus at the time the Registration Statement
became effective, at the time any post-effective amendment thereto
became effective and at the time any annual report on Form 10-K was
filed by the Company and incorporated by reference into the Prospectus,
none of such documents contained 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 any
further documents so filed during the period during which delivery of a
prospectus is required in connection with the offering or sale of the
Securities, and incorporated by reference in the Prospectus, when such
documents are filed with the Commission, will conform in all material
respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder and, when read together with
the other information included or incorporated by reference in the
Prospectus at the time such documents are filed with the Commission,
none of such documents will contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of an
Underwriter through the Representatives expressly for use in the
Prospectus;
(c) The Registration Statement, as amended, and the
Prospectus, as amended, conform, and any amendments or supplements
thereto filed during the period during which delivery of a prospectus
is required in connection with the offering or sale of the Securities
will conform, in all material respects to the applicable requirements
of the Act, the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission
thereunder. The Registration Statement, as amended, and the Prospectus,
as amended or supplemented as of the effective date of the Registration
Statement, do not, and as of the effective date of each post-effective
amendment thereto, if any, at the time any annual report on Form 10-K
is filed by the Company and incorporated by reference into the
Prospectus, the date of the Pricing Agreement, the Time of Delivery (as
hereinafter defined) and during the period during which delivery of a
prospectus is required in connection with the offering and sale of the
Securities, will not, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of an
Underwriter through the Representatives expressly for use in the
Prospectus, or to the Statement
-3-
of Eligibility on Form T-1 (the "Form T-1"), except as to statements or
omissions in such Form T-1 made in reliance upon information furnished
in writing to the Trustee by or on behalf of the Company for use
therein;
(d) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has been
no material adverse change, nor any development or event involving a
prospective material adverse change, in the business, financial
condition, or results of operations of the Company and its subsidiaries
taken as a whole, other than as set forth or contemplated in the
Prospectus as amended or supplemented, whether or not arising in the
ordinary course of business;
(e) The Company has been duly incorporated and is validly
existing as a corporation under the laws of the State of Indiana with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as
a foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases substantial properties, or conducts business, and where the
failure so to qualify and be in good standing would have a material
adverse effect on the business of the Company and its subsidiaries
taken as a whole; each of the Company's subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, has corporate
power and authority to own or lease its properties and conduct its
business as described in the Prospectus, and has been duly qualified as
a foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases substantial properties, or conducts business, and where the
failure so to qualify and be in good standing would have a material
adverse effect on the business of the Company and its subsidiaries
taken as a whole; and the Company and each of its subsidiaries have all
required authorizations, approvals, orders, licenses, certificates and
permits of and from all governmental regulatory officials and bodies
(including, without limitation, each insurance commission having
jurisdiction over the Company or any insurance subsidiary of the
Company) to own or lease its properties and conduct its business as
described in the Prospectus, except such authorizations, approvals,
orders, licenses, certificates and permits which, if not obtained,
would not have a material adverse effect on the business of the Company
and its subsidiaries taken as a whole, and neither the Company nor any
of its subsidiaries has received any notice of proceedings relating to
the revocation or modification of any such authorization, approval,
order, license, certificate or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially adversely affect the business of the Company
and its subsidiaries taken as a whole;
(f) All of the outstanding shares of capital stock of each of
the Company's subsidiaries have been duly authorized and validly
issued, are fully paid and non-assessable, and (except for directors'
qualifying shares) are owned, directly or indirectly, by the Company,
free and clear of all liens and encumbrances;
-4-
(g) The Securities have been duly authorized (or will have
been so authorized prior to their issuance) and, when executed and
authenticated pursuant to the Indenture or Warrant Agreement, as the
case may be, pursuant to which the Securities are being issued, and
issued and delivered against payment therefor pursuant to this
Agreement and the Pricing Agreement (or, in the case of any Contract
Securities, pursuant to the Delayed Delivery Contracts with respect
thereto), will be duly executed, authenticated, issued and delivered
and will constitute valid and legally binding obligations of the
Company enforceable against the Company in accordance with their terms
and entitled to the benefits of the Indenture or Warrant Agreement, as
the case may be, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; the Indenture or Warrant Agreement, as the case may
be, pursuant to which the Securities are being issued, has been duly
authorized, executed and delivered by the Company, and constitutes a
valid and legally binding instrument of the Company, enforceable
against the Company in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; the Indenture has
been duly qualified under the Trust Indenture Act; and the Securities
and the Indenture or Warrant Agreement, as the case may be, conform in
all material respects with the descriptions thereof in the Prospectus;
(h) The Warrant Securities, if any, have been duly authorized
(or will have been so authorized prior to issuance of the Warrants
relating thereto) for issuance and sale upon the exercise of the
Warrants, and, when executed and authenticated pursuant to the terms
and provisions of the Indenture and issued and delivered against
payment of the exercise price in accordance with the terms of the
Warrant Agreement, will be duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of
the Company enforceable against the Company in accordance with their
terms and entitled to the benefits of the Indenture, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the Warrant
Securities, if any, will conform in all material respects with the
description thereof in the Prospectus;
(i) In the event any of the Securities are purchased pursuant
to Delayed Delivery Contracts, each of such Delayed Delivery Contracts
has been (or will be prior to the Time of Delivery) duly authorized by
the Company and, when executed and delivered by the Company and the
purchaser named therein, will constitute a valid and legally binding
agreement of the Company enforceable against the Company in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and such Delayed Delivery Contracts will conform in all
material respects to the description thereof in the Prospectus;
(j) The issue and sale of the Securities and Warrant
Securities, if any, the compliance by the Company with all of the
provisions of the Securities and Warrant
-5-
Securities, if any, the Indenture, the Warrant Agreement, if any, each
of the Delayed Delivery Contracts, if any, this Agreement and the
Pricing Agreement, and the consummation of the transactions herein and
therein contemplated will not (i) conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument for money borrowed to which the Company or any
of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, or (ii) result in any
violation of (x) the provisions of the Restated Articles of
Incorporation, as amended, or the Amended and Restated By-Laws of the
Company or (y) to the best knowledge of the Company, any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or any
of their properties, in any manner which, in the case of clauses (i)
and (ii)(y), would have a material adverse effect on the business of
the Company and its subsidiaries taken as a whole; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the
issue and sale of the Securities or Warrant Securities, if any, or the
consummation by the Company of the other transactions contemplated by
this Agreement, the Pricing Agreement, the Indenture, the Warrant
Agreement, if any, or any Delayed Delivery Contract, except such as
have been, or will have been prior to the Time of Delivery, obtained
under the Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under "blue sky" or state securities laws or insurance laws in
connection with the purchase and distribution of the Securities by the
Underwriters; and
(k) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is subject which,
individually or in the aggregate, are expected to have a material
adverse effect on the business, financial condition, or results of
operations of the Company and its subsidiaries taken as a whole; and,
to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others.
SECTION 2. PURCHASE AND OFFERING OF SECURITIES. The obligation of the
Company to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Securities specified therein. The Pricing
Agreement shall specify the aggregate principal amount (in the case of Debt
Securities) or the number (in the case of Warrants) of the Securities, the
initial public offering price of such Securities, the purchase price to the
Underwriters of such Securities, the names of the Underwriters of such
Securities (subject to substitution as provided by Section 7 herein), the names
of the Representatives of such Underwriters, the principal amount or number of
such Securities to be purchased by each Underwriter and whether any of such
Securities shall be covered by Delayed Delivery Contracts and the commission
payable to the Underwriters with respect thereto and shall set forth the date,
time and manner of delivery of such Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture or
-6-
Warrant Agreement, as the case may be, pursuant to which the Securities are
being issued, and the Registration Statement and Prospectus) the terms of such
Securities. The Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and the Pricing Agreement shall be several and
not joint. Upon the execution of the Pricing Agreement and authorization by the
Representatives of the release of the Underwriters' Securities, the several
Underwriters propose to offer the Underwriters' Securities for sale upon the
terms and conditions set forth in the Prospectus.
Underwriters' Securities to be purchased by each Underwriter pursuant
to the Pricing Agreement, in definitive form to the extent practicable, and in
such authorized denominations and registered in such names as the
Representatives may request upon at least forty-eight hours prior notice to the
Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by or on
behalf of such Underwriter of the purchase price therefor, by certified or
official bank check or checks, payable to the order of the Company or by wire
transfer to a bank account specified by the Company, in the funds specified in
the Pricing Agreement, all at the place and time and date specified in the
Pricing Agreement or at such other place and time and date as the
Representatives and the Company may agree upon in writing, such time and date
being herein called the "Time of Delivery" for the Underwriters' Securities.
Concurrently with the delivery of and payment for the Underwriters'
Securities, the Company will deliver to the Representatives for the accounts of
the Underwriters a check payable to the order of the party designated in the
Pricing Agreement in the amount of any compensation payable by the Company to
the Underwriters in respect of any Delayed Delivery Contracts as provided in
this Section and in the Pricing Agreement.
The Company may specify in Schedule II to the Pricing Agreement that
the Underwriters are authorized to solicit offers to purchase Securities from
the Company pursuant to Delayed Delivery Contracts, substantially in the form of
Annex III attached hereto but with such changes therein as the Representatives
and the Company may authorize or approve. If so specified, the Underwriters will
endeavor to make such arrangements, and as compensation therefor the Company
will pay to the Representatives, for the accounts of the Underwriters, at the
Time of Delivery such commission, if any, as may be set forth in the Pricing
Agreement. Delayed Delivery Contracts, if any, are to be with investors of the
types described in the Prospectus and subject to other conditions therein set
forth. The Underwriters will not have any responsibility in respect of the
validity or performance of any Delayed Delivery Contracts.
The principal amount (in the case of Debt Securities) or number (in the
case of Warrants) of Contract Securities to be deducted from the principal
amount or number of Securities to be purchased by each Underwriter as set forth
in Schedule I to the Pricing Agreement shall be equal to the principal amount or
number of Contract Securities which the Company has been advised by the
Representatives have been attributed to such Underwriter, provided that, if the
Company has not been so advised, the amount or number of Contract Securities to
be so deducted shall be, in each case, that proportion of Contract
-7-
Securities which the principal amount or number of Securities to be purchased by
such Underwriter under the Pricing Agreement bears to the total principal amount
or number of the Securities (rounded as the Representatives may determine). The
total principal amount or number of Underwriters' Securities to be purchased by
all the Underwriters pursuant to the Pricing Agreement shall be the total
principal amount or number of Securities set forth in Schedule I to the Pricing
Agreement less the principal amount or number of the Contract Securities. The
Company will deliver to the Representatives not later than 3:30 p.m., New York
City time, on the third business day preceding the Time of Delivery (or such
other time and date as the Representatives and the Company may agree upon in
writing) a written notice setting forth the names of the investors with which
the making of Delayed Delivery Contracts has been approved by the Company and
the principal amount or number of Contract Securities to be covered by each such
Delayed Delivery Contract.
SECTION 3. CERTAIN AGREEMENTS OF THE COMPANY. The Company agrees with
each of the Underwriters:
(a) Immediately following the execution of the Pricing
Agreement, to prepare an amendment or supplement to the prospectus
related to the Registered Securities to reflect the terms of the
offering of the Securities (the "Prospectus Supplement") in a form
reasonably approved by the Representatives, and to file or transmit for
filing the Prospectus Supplement pursuant to Rule 424(b) under the Act
within the applicable time period prescribed therefor by the rules and
regulations under the Act; except as otherwise required by law, to make
no amendment or supplement to the Registration Statement or Prospectus
after the date of the Pricing Agreement and prior to the Time of
Delivery which shall be reasonably disapproved by the Representatives
promptly after reasonable notice thereof; for so long as the delivery
of a prospectus is required in connection with the offering or sale of
the Securities, to file promptly all reports and any definitive proxy
or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act, and to advise the Representatives, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed
or transmitted for filing with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of any prospectus relating to the Securities, of the suspension
of the qualification of such Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any such
stop order or of any such order preventing or suspending the use of any
prospectus relating to the Securities or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Securities and
any Warrant Securities for offering and sale under the securities and
insurance laws of such jurisdictions as the
-8-
Representatives may reasonably request and to comply with such laws to
the extent necessary to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to
complete the distribution of such Securities; provided, however, that
in connection therewith the Company shall not be required to qualify as
a foreign corporation or as a dealer in securities in any jurisdiction
in which it is not so qualified or to file a general consent to service
of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus
in such quantities as the Representatives may from time to time
reasonably request, and, if the delivery of a prospectus is required at
any time in connection with the offering or sale of the Securities and
if at such time any event shall have occurred or condition exist as a
result of which the Prospectus, as it may then be amended or
supplemented, would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period, in the
opinion of the Representatives or the Company, to amend or supplement
the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Act, the Exchange Act or the Trust Indenture Act, to notify the
Representatives of such event, condition, filing, amendment or
supplement and upon the Representatives' request to file such document
and to prepare and furnish without charge to each Underwriter and to
any dealer in securities as many copies as the Representatives may from
time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance;
(d) To make generally available to its security holders as
soon as practicable, but in any event not later than 90 days following
the close of the period covered thereby, an earnings statement,
covering a twelve-month period beginning not later than the first day
of the Company's fiscal quarter next following the "effective date" (as
defined in Rule 158 under the Act) of the Registration Statement, of
the Company and its subsidiaries (which need not be audited) complying
with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement and continuing to and including the Time of Delivery, not to
offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company (except for any debt securities issued upon
exercise of outstanding warrants, if any, and except that the Company
shall have the right to close during such period the sale of any debt
securities under its medium-term note programs that it had agreed to
sell on or before the date of the Pricing Agreement and of which it had
informed the Representatives prior to their execution of the Pricing
Agreement) having an original maturity of more than one year after such
Time of Delivery, or any warrants for the purchase of any such debt
securities of the Company, without the prior consent of the
Representatives; and
-9-
(f) The Company shall file in a timely manner all documents
required to be filed with the Commission pursuant to Sections 13 and 14
of the Exchange Act.
SECTION 4. PAYMENT OF EXPENSES. The Company agrees to pay or cause to
be paid the following: (i) the fees, disbursements and expenses of the Company's
counsel and accountants in connection with the registration of the Registered
Securities and any Warrant Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, the Pricing Agreement, the Indenture, any
Warrant Agreement, any Delayed Delivery Contracts, any Blue Sky and Legal
Investment Memoranda and any other documents in connection with the offering,
purchase, sale and delivery of the Registered Securities and any Warrant
Securities; (iii) all expenses in connection with the qualification of the
Registered Securities and any Warrant Securities for offering and sale under
state securities laws as provided in Section 3(b) hereof, including the
reasonable fees and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky and legal investment
surveys; (iv) any fees charged by securities rating services for rating the
Securities and any Warrant Securities; (v) any filing fees incident to any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Securities and any Warrant Securities; (vi) the cost of
preparing the Securities and any Warrant Securities; (vii) the fees and expenses
of the Trustee and any agent of the Trustee and of any Warrant Agent and any
agent of any Warrant Agent; and (viii) all other costs and expenses incident to
the performance of its obligations hereunder and under any Delayed Delivery
Contracts which are not otherwise specifically provided for in this Section 4.
It is understood, however, that, except as provided in this Section 4, Section 6
and Section 8 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees and disbursements of their own counsel, transfer
taxes on resale of any of the Securities or Warrant Securities by them, and any
advertising expenses connected with any offers they may make.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters under the Pricing Agreement shall be subject, in
the discretion of the Representatives, to the condition that all representations
and warranties of the Company in or incorporated by reference in the Pricing
Agreement are, at and as of the Time of Delivery, true and correct, the
condition that the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus Supplement shall have been filed or
transmitted for filing with the Commission pursuant to Rule 424(b)
within the applicable time period prescribed therefor by the rules and
regulations under the Act and in accordance with Section 3(a) hereof;
no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall
have been complied with to the Representatives' reasonable
satisfaction;
-10-
(b) Brown & Wood, counsel for the Underwriters (unless
otherwise indicated in the Pricing Agreement), shall have furnished to
the Representatives such opinion or opinions, dated the Time of
Delivery, with respect to the due and valid authorization, execution
and delivery of the Indenture, the Warrant Agreement, if any, the
Securities and the Delayed Delivery Contracts, if any, and the
Registration Statement, the Prospectus and other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters (in rendering such opinion or
opinions, Brown & Wood may rely as to matters of Indiana Law upon the
opinions of Baker & Daniels (or other counsel licensed to practice in
the State of Indiana) and of the General Counsel of the Company
referred to in subsections 5(c) and 5(d), respectively);
(c) Baker & Daniels, counsel for the Company, or such other
counsel as shall be indicated in the Pricing Agreement, shall have
furnished to the Representatives their written opinion, dated the Time
of Delivery, in form and substance satisfactory to the Representatives,
to the effect that:
(i) The Company is a corporation duly incorporated
and validly existing under the laws of the State of Indiana,
with corporate power and authority to own its properties and
conduct its business as described in the Prospectus;
(ii) The Pricing Agreement (including the provisions
of this Agreement) and any Delayed Delivery Contracts have
been duly authorized, executed and delivered by the Company;
(iii) The Indenture or Warrant Agreement, as the case
may be, pursuant to which the Securities are being issued has
been duly authorized, executed and delivered by the Company
and (assuming the Indenture or Warrant Agreement, as the case
may be, has been duly authorized, executed and delivered by
the Trustee or Warrant Agent, as applicable) constitutes a
valid and legally binding instrument of the Company,
enforceable against the Company in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and
to general equity principles; the Indenture has been duly
qualified under the Trust Indenture Act; and the Indenture or
Warrant Agreement, as the case may be, conforms in all
material respects to the description thereof in the
Prospectus;
(iv) The Securities have been duly authorized and,
when executed and authenticated pursuant to the Indenture or
Warrant Agreement, as the case may be, pursuant to which the
Securities are being issued, and issued and delivered against
payment therefor pursuant to this Agreement and the Pricing
Agreement (or, in the case of any Contract Securities,
pursuant to the Delayed Delivery Contracts with respect
thereto), will be duly executed, authenticated, issued and
delivered and will constitute valid and legally binding
obligations of the Company enforceable against the Company in
-11-
accordance with their terms and entitled to the benefits of
the Indenture or Warrant Agreement, as the case may be,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and
to general equity principles; and the Securities are in the
form authorized in or pursuant to the Indenture or Warrant
Agreement, as the case may be, pursuant to which the
Securities are being issued and conform in all material
respects to the description thereof in the Prospectus;
(v) The Warrant Securities, if any, have been duly
authorized for issuance and sale upon the exercise of the
Warrants, and, when executed and authenticated pursuant to the
terms and provisions of the Indenture and issued and delivered
against payment of the exercise price in accordance with the
terms of the Warrant Agreement, will be duly executed,
authenticated, issued and delivered and will constitute valid
and legally binding obligations of the Company enforceable
against the Company in accordance with their terms and
entitled to the benefits of the Indenture, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws of general applicability relating to
or affecting creditors' rights and to general equity
principles; and the form of Warrant Securities, if any,
conforms in all material respects to the description thereof
in the Prospectus;
(vi) The Registration Statement is effective under
the Act and, to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose
has been instituted or threatened by the Commission; and
(vii) The Registration Statement, at the time it
became effective, and as amended or supplemented as of the
date of the Pricing Agreement (other than the financial
statements and other financial information included therein or
the Statement of Eligibility of the Trustee under the
Indenture, as to which no opinion or belief need be
expressed), appeared on its face to be appropriately
responsive in all material respects to the applicable
requirements of the Act, the Trust Indenture Act and the
respective rules and regulations of the Commission thereunder.
In addition, such opinion shall also contain a
statement that no facts have come to such counsel's attention
that lead them to believe that the Registration Statement, at
the time it became effective, or if an amendment to the
Registration Statement or an annual report on Form 10-K has
been filed by the Company with the Commission subsequent to
the effectiveness of the Registration Statement, then at the
time the most recent such amendment became effective or the
most recent such Form 10-K was filed, as the case may be, and
as of the date of the Pricing Agreement, contained 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 or that the Prospectus, as
amended or supplemented at the date of the Pricing Agreement
and at the Time of Delivery, contains an untrue statement of a
-12-
material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(d) The General Counsel of the Company shall have furnished to
the Representatives his written opinion, dated the Time of Delivery, in
form and substance satisfactory to the Representatives, to the effect
that:
(i) Each of the subsidiaries of the Company has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of its jurisdiction of
incorporation; to the knowledge of such counsel, the Company
and each of its subsidiaries has been duly qualified as a
foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in
which it owns or leases substantial properties, or conducts
business, and where the failure so to qualify would have a
material adverse effect on the business of the Company and its
subsidiaries taken as a whole; all of the outstanding shares
of capital stock of each such subsidiary have been duly
authorized and validly issued, are fully paid and
non-assessable, and (except for directors' qualifying shares)
are owned, directly or indirectly, by the Company, free and
clear of all liens and encumbrances; and, to the knowledge of
such counsel, the Company and each of its subsidiaries has all
required authorizations, approvals, orders, licenses,
certificates and permits of and from all governmental
regulatory officials and bodies (including, without
limitation, each insurance commission having jurisdiction over
the Company or any insurance subsidiary of the Company) to own
or lease its properties and to conduct its business as
described in the Prospectus, except such authorizations,
approvals, orders, licenses, certificates and permits which,
if not obtained, would not have a material adverse effect on
the business of the Company and its subsidiaries taken as a
whole (such counsel being entitled to rely in respect of the
opinion in this clause (i) upon opinions (in form and
substance satisfactory to the Representatives) of local
counsel and of counsel for the subsidiaries, such counsel
being acceptable to counsel for the Underwriters, copies of
which shall be furnished to the Representatives; and in
respect of matters of fact upon certificates of officers of
the Company or its subsidiaries, provided that such counsel
shall state that he believes that he is justified in relying
upon such opinions and certificates);
(ii) To the best knowledge of such counsel there are
no legal or governmental proceedings pending or threatened of
a character which are required to be disclosed in the
Registration Statement and Prospectus, other than as disclosed
therein; to the best knowledge of such counsel, there are no
contracts, indentures, mortgages, deeds of trust, loan
agreements or other documents of a character required to be
described in the Registration Statement or Prospectus (or
required to be filed under the Exchange Act if upon such
filing they would be incorporated by reference therein) or to
be filed as exhibits to the Registration Statement that are
not described and filed as required;
-13-
(iii) The issue and sale of the Securities and
Warrant Securities, if any, the compliance by the Company with
all of the provisions of the Securities, the Warrant
Securities, if any, the Indenture, the Warrant Agreement, if
any, each of the Delayed Delivery Contracts, if any, this
Agreement and the Pricing Agreement, and the consummation of
the transactions herein and therein contemplated will not (A)
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument for money borrowed to which the Company or any of
its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject,
or (B) result in any violation of (x) the provisions of the
Restated Articles of Incorporation, as amended, or the Amended
and Restated By-Laws of the Company or (y) any statute or any
order, rule or regulation known to such counsel of any court
or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties,
in any manner which, in the case of clauses (A) and (B)(y),
would have a material adverse effect on the business of the
Company and its subsidiaries taken as a whole (such counsel
being entitled to rely in respect of the opinion in this
clause (iii) with respect to subsidiaries upon opinions (in
form and substance satisfactory to the Representatives) of
counsel for the subsidiaries, such counsel being acceptable to
counsel for the Underwriters, copies of which shall be
furnished to the Representatives, provided that such counsel
shall state that he believes that he is justified in relying
upon such opinions); and
(iv) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Securities or the Warrant Securities, if any, or the
consummation by the Company of the other transactions
contemplated by this Agreement, the Pricing Agreement, the
Indenture, the Warrant Agreement, if any, or any Delayed
Delivery Contract, except such as may be required under the
Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under "blue sky" or state securities laws or
insurance laws in connection with the purchase and
distribution of the Securities by the Underwriters.
(e) At the Time of Delivery, the independent certified public
accountants who have audited the financial statements of the Company
and its subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to the Representatives a
letter or letters dated such Time of Delivery, in form and substance
reasonably satisfactory to the Representatives, to the effect set forth
in Annex II hereto;
(f) Since the date of the Pricing Agreement and since the
respective dates as of which information is given in the Prospectus,
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the business,
financial condition, or results of operations of the
-14-
Company and its subsidiaries taken as a whole, whether or not arising
in the ordinary course of business, the effect of which is, in the
reasonable judgment of the Representatives, so material and adverse as
to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Underwriters' Securities on the terms
and in the manner contemplated in the Prospectus;
(g) Subsequent to the date of the Pricing Agreement, no
downgrading shall have occurred in the rating accorded the Company's
long-term debt securities by either Moody's Investors Service, Inc. or
Standard & Poor's Corporation;
(h) Subsequent to the date of the Pricing Agreement, there
shall not have occurred any of the following: (i) a suspension or
material limitation in trading in securities generally on the New York
Stock Exchange or any other exchange on which application shall have
been made to list the Securities; (ii) a general moratorium on
commercial banking activities in New York declared by either Federal or
New York State authorities; or (iii) the engagement by the United
States in hostilities which have resulted in the declaration of a
national emergency or war on or after the date of such Pricing
Agreement, if the effect of any such event specified in this subsection
5(h), in the reasonable judgment of the Representatives, makes it
impracticable to proceed with the public offering or the delivery of
the Underwriters' Securities on the terms and in the manner
contemplated in the Prospectus; and
(i) The Company shall have furnished or caused to be furnished
to the Representatives at the Time of Delivery, a certificate or
certificates of the Company signed by the Chairman, the President or a
Vice President as to the accuracy of the representations and warranties
of the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, and as to the matters
set forth in subsections 5(a) and 5(f).
SECTION 6. INDEMNIFICATION.
(a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint
or several, as incurred, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or arise out of
or are 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, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter
in connection with investigating, preparing for or defending against
any such action or claim, commenced or threatened; provided, however,
that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in any Preliminary Prospectus, the
Registration
-15-
Statement, the Prospectus, or any such amendment or supplement, in
reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the
Representatives expressly for use therein; and provided, further, that
the Company shall not be liable to any Underwriter under the indemnity
agreement in this subsection (a) with respect to any Preliminary
Prospectus to the extent that any such loss, claim, damage or liability
of such Underwriter results from the fact that such Underwriter sold
Underwriters' Securities to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of
the Prospectus as then amended or supplemented (excluding documents
incorporated by reference therein) in any case where such delivery is
required by the Act if the Company has previously furnished copies
thereof to such Underwriter and the loss, claim, damage or liability of
such Underwriter results from an untrue statement or omission or
alleged untrue statement or omission of a material fact contained in
the Preliminary Prospectus which was corrected in the Prospectus (or
the Prospectus as amended or supplemented).
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities, as
incurred, to which the Company may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement, the Prospectus,
or any amendment or supplement thereto, or arise out of or are 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, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus,
the Registration Statement, the Prospectus, or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such Underwriter through
the Representatives expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating, preparing for or defending
against any such action or claim, commenced or threatened.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement or threat of
any action, such indemnified party shall, if a claim in respect thereof
is to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement or threat
thereof; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified
party otherwise than under such subsection. In case any such action
shall be commenced or threatened against any indemnified party and it
shall notify the indemnifying party of the commencement or threat
thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish and so elect within a
reasonable time after receipt of such notification, jointly with any
other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to
the indemnifying party and it being understood that the
-16-
indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one
separate firm of attorneys (provided that local counsel may be retained
to the extent necessary) for all such indemnified parties (treating the
indemnified party and the persons referred to in subsection (e) below
to which the provisions of this Section 6 shall extend as a single
indemnified party for such purpose)), and, after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable
to such indemnified party under such subsection for any legal expenses
of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense
thereof other than reasonable costs of investigation. Whether or not
the indemnifying party elects to assume the defense of any action
commenced or threatened in accordance with this subsection (c), the
indemnifying party shall not be liable for any settlement of such
action effected by the indemnified party unless such settlement is
effected with the prior written consent of the indemnifying party.
(d) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other hand
from the offering of the Securities. If, however, the allocation
provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice
required under subsection (c) above or is not entitled to receive the
indemnification provided for in subsection (a) above because of the
second proviso thereof, then each indemnifying party shall contribute
to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company on the one hand and the
Underwriters on the other hand in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities
(or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other hand shall be deemed
to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company on the one hand or
the Underwriters on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission, including, with respect to any Underwriter,
the extent to which such losses, claims, damages or liabilities (or
actions in respect thereof) with respect to any Preliminary Prospectus
result from the fact that such Underwriter sold Underwriters'
Securities to a person to whom there
-17-
was not sent or given, at or prior to the written confirmation of such
sale, a copy of the Prospectus as then amended or supplemented
(excluding documents incorporated by reference) in any case where such
delivery is required by the Act, if the Company has previously
furnished copies thereof to such Underwriter and the loss, claim,
damage or liability results from an untrue statement or omission or
alleged untrue statement or omission of a material fact contained in
the Preliminary Prospectus which was corrected in the Prospectus (or
the Prospectus as amended or supplemented). The Company and the
Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating, preparing for
or defending against any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price
at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of
such 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. The obligations of the Underwriters in this
subsection (d) to contribute are several in proportion to their
respective underwriting obligations with respect to the Securities and
not joint.
(e) The obligations of the Company under this Section 6 shall
be in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and conditions, to each person,
if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section 6 shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each officer and director of the Company and to each person, if any,
who controls the Company within the meaning of the Act.
SECTION 7. DEFAULT OF UNDERWRITERS.
(a) If any Underwriter shall default in its obligation to
purchase the Underwriters' Securities which it has agreed to purchase
under the Pricing Agreement, the Representatives may in their
discretion arrange for themselves or another party or other parties to
purchase such Underwriters' Securities on the terms contained herein.
If within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Underwriters'
Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Underwriters'
Securities on such terms. In the event that, within
-18-
the respective prescribed periods, the Representatives notify the
Company that they have so arranged for the purchase of such
Underwriters' Securities, or the Company notifies the Representatives
that it has so arranged for the purchase of such Underwriters'
Securities, the Representatives or the Company shall have the right to
postpone the Time of Delivery for such Underwriters' Securities for a
period of not more than seven days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter"
as used in this Agreement and the Pricing Agreement shall include any
person substituted under this Section with like effect as if such
person had originally been a party to the Pricing Agreement.
(b) If, after giving effect to any arrangements for the
purchase of the Underwriters' Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate amount of such Underwriters'
Securities which remains unpurchased does not exceed ten percent of the
aggregate amount of the Securities, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the amount
of Underwriters' Securities which such Underwriter agreed to purchase
under the Pricing Agreement and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
amount of the Securities which such Underwriter agreed to purchase
under the Pricing Agreement) of the Underwriters' Securities of such
defaulting Underwriter or Underwriters for which such arrangements have
not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default. The respective commitments
of the Underwriters for purposes of this Section shall be determined
without regard to reduction in the respective Underwriters' obligations
to purchase the amounts of the Securities set forth opposite their
names in Schedule I to the Pricing Agreement as a result of Delayed
Delivery Contracts, if any, entered into by the Company.
(c) If, after giving effect to any arrangements for the
purchase of the Underwriters' Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate amount of Underwriters' Securities
which remains unpurchased exceeds ten percent of the aggregate amount
of the Securities as determined as set forth in subsection (b) above,
or if the Company shall not exercise the right described in subsection
(b) above to require non-defaulting Underwriters to purchase
Underwriters' Securities of a defaulting Underwriter or Underwriters,
then the Pricing Agreement shall thereupon terminate, without liability
on the part of any non-defaulting Underwriter or the Company, except
for the expenses to be borne by the Company and the Underwriters as
provided in Section 4 hereof and the indemnity and contribution
agreements in Section 6 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(d) As used in this Section 7 only, "aggregate amount" refers
to the aggregate principal amount of any Debt Securities and the public
offering price of any Warrants.
-19-
SECTION 8. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The
respective indemnities, agreements, representations, warranties and other
statements of the Company and the several Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities. If the Pricing Agreement
shall be terminated pursuant to Section 7 hereof, the Company shall not then be
under any liability to any Underwriter except as provided in Section 4 and
Section 6 hereof; but, if for any other reason Underwriters' Securities are not
delivered by or on behalf of the Company as provided herein, the Company will
reimburse the Underwriters through the Representatives for all reasonable
out-of-pocket expenses, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Underwriters' Securities, but the Company shall then be under no
further liability to any Underwriter with respect to the Securities except as
provided in Section 4 and Section 6 hereof.
SECTION 9. PARTIES AND NOTICES.
(a) In all dealings hereunder, the Representatives shall act
on behalf of each of the Underwriters, and the parties hereto shall be
entitled to act and rely upon any statement, request, notice or
agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as
may be designated for such purpose in the Pricing Agreement; and
(b) All statements, requests, notices and agreements
hereunder shall be in writing, or by telegram or facsimile transmission
if promptly confirmed in writing, and if to the Underwriters shall be
sufficient in all respects if delivered or sent by registered mail to
the Representatives, as such, at the address of the Representatives
designated for such purpose as set forth in the Pricing Agreement; and
if to the Company shall be sufficient in all respects if delivered or
sent by registered mail to the address of the Company set forth in the
Registration Statement, Attention: Secretary; provided, however, that
any notice to an Underwriter pursuant to Section 6(c) hereof shall be
delivered or sent by registered mail to such Underwriter at its address
set forth in its Underwriters' Questionnaire, or telex constituting
such Questionnaire, which address will be supplied to the Company by
the Representatives upon request.
SECTION 10. SUCCESSORS. This Agreement and the Pricing Agreement shall
be binding upon, and inure solely to the benefit of the Underwriters, the
Company and, to the extent provided in Section 6 and Section 8 hereof, the
officers and directors of the Company and each person who controls the Company
or any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement or the Pricing Agreement. No purchaser of
any of the Securities from any Underwriter shall be deemed a successor or assign
by reason merely of such purchase.
-20-
SECTION 11. GOVERNING LAW. This Agreement and the Pricing Agreement
shall be governed by, and construed in accordance with, the laws of the State of
New York applicable to agreements made and to be performed in such State.
SECTION 12. COUNTERPARTS. The Pricing Agreement may be executed by any
one or more of the parties thereto in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
-21-
ANNEX I
PRICING AGREEMENT
[Name of Representatives]
[Name of Co-Representative(s)]
As representatives of the several
Underwriters named in Schedule I hereto
[c/o Representatives]
[Address of Representative] _________, 19__
Dear Sirs:
American General Finance Corporation, an Indiana corporation (the
"Company"), proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement filed as an exhibit to the Company's registration
statement on Form S-3 (No. 33-55803) and attached hereto (the "Underwriting
Agreement"), to issue and sell to the Underwriters named in Schedule I hereto
(the "Underwriters") the [debt securities (the "Debt Securities")] [and]
[warrants to purchase debt securities (the "Warrants")] specified in Schedule II
hereto ([such Debt Securities and Warrants being collectively referred to as]
the "Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Pricing Agreement to the same extent as if such provisions had been
set forth in full herein; and each of the representations and warranties set
forth therein shall be deemed to have been made at and as of the date of this
Pricing Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall be
deemed to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representatives
designated to act on behalf of each of the Underwriters pursuant to Section 9 of
the Underwriting Agreement and the address of the Representatives referred to in
such Section 9 are set forth in Schedule II hereto.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the [principal amount of Debt Securities] [and] [number of Warrants] set forth
opposite the name of such Underwriter in Schedule I hereto, [less the [principal
amount of Debt Securities] [and] [number of Warrants] covered by Delayed
Delivery Contracts, if any, as may be specified in such Schedule II].
If the foregoing is in accordance with your understanding, please sign
and return to us _____________ counterparts hereof, and upon acceptance hereof
by you, on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions
-1-
of the Underwriting Agreement incorporated herein by reference, shall constitute
a binding agreement between each of the Underwriters and the Company.
Very truly yours,
AMERICAN GENERAL FINANCE CORPORATION
By: ________________________________
(Title)
Accepted as of the date hereof:
[Name of Representative Corporation
By: _________________________________]
(Title)
[Name of Representative Partnership
______________________________________
(Name of Representative Partnership)]
On behalf of each of the Underwriters
-2-
SCHEDULE I
[Principal Amount of [Number of
Debt Securities to be Warrants to
Underwriter Purchased be Purchased
----------- --------------------- ------------
[Name of Representatives] ................ $
[Names of other Underwriters] ............
---------- --------
Total ............................... $ ] ]
========== ========
-3-
SCHEDULE II
[IF SECURITIES INCLUDE DEBT SECURITIES, INSERT --
TITLE OF DEBT [_____%] [Floating Rate] [Zero Coupon] [Notes]
SECURITIES: [Debentures] due
AGGREGATE PRINCIPAL $________________
AMOUNT:
PRICE TO PUBLIC: _____% of the principal amount of the Debt
Securities, plus accrued interest[, if any,] from
________ to ___________ [and accrued amortization,
if any, from __________ to __________]
PURCHASE PRICE BY ____% of the principal amount of the UNDERWRITERS:
Debt Securities plus accrued interest[, if any,] from
__________ to ____________ [and accrued amortization,
if any, from ___________ to __________]
METHOD OF AND SPECIFIED [By certified or official bank check or checks,
FUNDS FOR PAYMENT OF payable to the order of the Company in [New York]
PURCHASE PRICE: Clearing House funds]
[By wire transfer to a bank account specified by the
Company in next day funds]
INDENTURE: Indenture dated as of October 1, 1994 between the
Company and The Chase Manhattan Bank (National
Association), as Trustee.
TIME OF DELIVERY: [Time and date], 19__.
CLOSING LOCATION:
-4-
NAMES AND ADDRESSES OF Designated Representatives:
REPRESENTATIVES:
Address for Notices, etc.:
[SECURITIES EXCHANGE: Debt Securities to be listed on the [New York] Stock
Exchange]
DELAYED DELIVERY: [None] [Underwriters' commission shall be ____% of
the principal amount of Debt Securities for which
Delayed Delivery Contracts have been entered into.
Such commission shall be payable to the order of
------------------------------.]
MATURITY:
INTEREST RATE: [_____%] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES: [months and dates]
REDEMPTION PROVISIONS: [No provisions for redemption]
[The Debt Securities may be redeemed, [otherwise than
through the sinking fund,] in whole or in part at the
option of the Company, in the amount of $__________
or an integral multiple thereof, ___________]
[on or after ______________________, _______ at the
following redemption prices (expressed in percentages
of principal amount). If [redeemed on or before
__________________, _____%, and if] redeemed during
the 12-month period beginning ______________,
Year Redemption Price
---- ----------------
and thereafter at 100% of their principal amount,
together in each case with accrued interest to the
redemption date.]
-5-
[on any interest payment date falling on or after
_________________, ___________, at the election of
the Company, at a redemption price equal to the
principal amount thereof, plus accrued interest to
the date of redemption.]
[Other possible redemption provisions, such as
mandatory redemption upon occurrence of certain
events or redemption for changes in tax law]
[Restriction on refunding]
REPAYMENT PROVISIONS: [None] [Debt Securities are repayable on ________,
___ [insert date and year[s]], at the option of the
holder, at their principal amount with accrued
interest.]
SINKING FUND PROVISIONS: [No sinking fund provisions]
[The Debt Securities are entitled to the benefit of a
sinking fund to retire $_________ principal amount of
Debt Securities on ___________ in each of the years
_____ through _____ at 100% of their principal amount
plus accrued interest] [, together with [cumulative]
[non-cumulative] redemptions at the option of the
Company to retire an additional $_________ principal
amount of Debt Securities in the years _____ through
_____ at 100% of the principal amount plus accrued
interest.]
[IF DEBT SECURITIES ARE EXTENDIBLE SECURITIES, INSERT --
EXTENDIBLE PROVISIONS: Debt Securities are repayable on ______________,
____________ [insert date and years], at the option
of the holder at their principal amount with accrued
interest. Initial annual interest rate will be
_____%, and thereafter annual interest rate will be
adjusted on ___________, __________________ and
_______ to a rate not less than _____% of the
effective annual interest rate on U.S. Treasury
obligations with ___-year maturities as of the
[insert date 15 days prior to maturity date] prior to
such [insert maturity date].]
-6-
[IF DEBT SECURITIES ARE FLOATING RATE SECURITIES, INSERT --
FLOATING RATE Initial annual interest rate will be _____% through
PROVISIONS: ______________ [and thereafter will be adjusted
[monthly] [on each _____________, ______________,
______________ and __________] [to an annual rate of
_____% above the average rate for _____-year [month]
[securities] [certificates of deposit] by
______________ and ______________ [insert names of
banks].] [and the annual interest rate [thereafter]
[from ____________ through _____________] will be the
interest yield equivalent of the weekly average per
annum market discount rate for _____-month Treasury
bills plus _____% of Interest Differential (the
excess, if any, of (i) then current weekly average
per annum secondary market yield for _____-month
certificates of deposit over (ii) then current
interest yield equivalent of the weekly average per
annum market discount rate of _____-month Treasury
bills); [from _____________ and thereafter the rate
will be the then current interest yield equivalent
plus _____% of Interest Differential].]
[OTHER TERMS]*:]
[IF SECURITIES INCLUDE WARRANTS, INSERT --
NUMBER OF WARRANTS TO BE
ISSUED:
WARRANT AGENT:
WARRANT AGREEMENT:
- -------------------------
* A description of particular tax, accounting or other unusual features
of the Debt Securities should be set forth, or referenced to an ATTACHED AND
ACCOMPANYING description, if necessary to the issuer's understanding of the
transaction contemplated. Such a description might appropriately be in the form
in which such features will be described in the Prospectus Supplement for the
offering.
-7-
ISSUABLE JOINTLY WITH [Yes] [No]
DEBT SECURITIES:
[Number of Warrants issued
with each $ principal
amount of Debt Securities:]
[Detachable Date:]
DATE FROM WHICH WARRANTS
ARE EXERCISABLE:
DATE ON WHICH WARRANTS
EXPIRE:
EXERCISE PRICE:
PRICE TO PUBLIC:
PURCHASE PRICE BY
UNDERWRITERS:
METHOD OF AND SPECIFIED
FUNDS FOR PAYMENT OF
PURCHASE PRICE:
TIME OF DELIVERY:
CLOSING LOCATION:
NAMES AND ADDRESSES OF
REPRESENTATIVES:
[SECURITIES EXCHANGE:]
DELAYED DELIVERY:
TITLE OF WARRANT Principal amount of
SECURITIES: Warrant Securities
purchasable upon
exercise of one Warrant:
Indenture: Indenture dated as of October 1, 1994
between the Company and The Chase
Manhattan Bank (National Association) as
Trustee.
Maturity:
Interest Rate:
-8-
Interest Payment Dates:
Redemption Provisions:
Repayment Provisions:
Sinking Fund Provisions:
[Other Provisions:]]
-9-
ANNEX II
Pursuant to subsection 5(e) of the Underwriting Agreement, the
Underwriters shall have received from the independent certified public
accountants who have audited the financial statements of the Company and its
subsidiaries included or incorporated by reference in the Registration Statement
and Prospectus, one or more letters, dated as of the Time of Delivery, each of
which shall be to the effect that they are independent auditors with respect to
the Company as required by the Act and by the published rules and regulations of
the Commission thereunder and which, when read together, shall be to the further
effect that:
(i) In their opinion the financial statements of the Company and
its subsidiaries audited by them and included or incorporated by
reference in the Registration Statement and Prospectus, comply as to
form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the applicable
published rules and regulations thereunder;
(ii) On the basis of a reading of the unaudited financial
statements and any other unaudited financial statement data included or
incorporated by reference in the Registration Statement and Prospectus,
a reading of the latest available interim unaudited financial statements
of the Company and its subsidiaries ("Interim Financials"), if any, a
reading of any unaudited pro forma financial statements included or
incorporated by reference in the Registration Statement and Prospectus
and a reading of the minutes of the Company's shareholder's meetings,
the meetings of the Board of Directors, the Executive Committee of the
Board of Directors and the Terms and Pricing Committee of the Board of
Directors since the end of the most recent fiscal year with respect to
which an audit report has been issued and inquiries of and discussions
with certain officials of the Company responsible for accounting and
financial matters with respect to the unaudited financial statements and
any other unaudited financial statement data included or incorporated by
reference in the Registration Statement and Prospectus, any Interim
Financials, and any unaudited pro forma financial statements included or
incorporated by reference in the Registration Statement and Prospectus,
and as to whether (1) as of a specified date not more than five days
prior to the date of the letter, there was any change in the
consolidated capital stock or any increase in consolidated long-term
debt of the Company and its subsidiaries (except for increases due to
accretion of discount on original issue discount securities, if any) or
any decrease in the consolidated net assets of the Company and its
subsidiaries as compared with the amounts shown on the most recent
consolidated balance sheet of the Company and its subsidiaries included
or incorporated by reference in the Registration Statement and
Prospectus (the "Recent Balance Sheet") or (2) during the period, if
any, from the date of the Recent Balance Sheet to the date of the most
recent balance sheet included in the Interim Financials (the "Interim
Period") there was any decrease, as compared with the corresponding
period in the
-1-
preceding year, in consolidated total revenues or in
consolidated net income of the Company and its subsidiaries, or (3)
during the period from the date of the Interim Financials or, if there
are no Interim Financials, from the date of the Recent Balance Sheet to
a specified date not more than five days prior to the date of the letter
there was any decrease, as compared with the corresponding period in the
preceding year, in consolidated total revenues or in consolidated net
income of the Company and its subsidiaries, which reading, inquiries and
discussions would not necessarily reveal changes in the financial
position or results of operations or inconsistencies in the application
of generally accepted accounting principles or other matters of
significance with respect to the following, nothing has come to their
attention which would lead them to believe that (A) the unaudited
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and Prospectus
do not comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the published rules and
regulations thereunder or that those unaudited financial statements were
not in conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited financial
statements included or incorporated by reference therein, (B) the
Interim Financials, if any, were not determined on a basis substantially
consistent with that of the audited consolidated financial statements
included or incorporated by reference in the Registration Statement and
Prospectus, (C) any other unaudited financial statement data included or
incorporated by reference in the Registration Statement and Prospectus
do not agree with the corresponding items in the unaudited financial
statements from which such data were derived or any such unaudited
financial statement data were not determined on a basis substantially
consistent with the corresponding amounts in the audited financial
statements included or incorporated by reference in the Registration
Statement and Prospectus, (D) any unaudited pro forma financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X or the pro forma
adjustments have not been properly applied to the historical amounts in
the compilation of those statements, (E)(1) as of the date of the
Interim Financials, if any, and as of a specified date not more than
five days prior to the date of the letter, there was any change in the
consolidated capital stock or any increase in consolidated long-term
debt of the Company and its subsidiaries (except for increases due to
accretion of discount on original issue discount securities, if any) or
any decrease in the consolidated net assets of the Company and its
subsidiaries as compared with the amounts shown on the Recent Balance
Sheet or (2) during any Interim Period, there was any decrease, as
compared with the corresponding period in the preceding year, in
consolidated total revenues or in consolidated net income of the Company
and its subsidiaries, or (3) during the period from the date of the
Interim Financials or, if there are no Interim Financials, from the date
of the Recent Balance Sheet to a specified date not more than five days
prior to the date of the letter there was any decrease, as compared with
the corresponding period in the preceding year, in consolidated total
revenues or in consolidated net income of the Company and its
subsidiaries except in each such case for (1), (2) and (3) as set forth
in or contemplated by the Registration Statement and Prospectus or
except for such exceptions as may be enumerated in such letter; and
(iii) In addition to the limited procedures referred to in clause
(ii) above, they have carried out certain other specified procedures,
not constituting an audit, with respect to certain amounts, percentages
and financial information which are derived from the general financial
and accounting records of the Company and its subsidiaries, which are
included or incorporated by reference in the Registration Statement and
-2-
Prospectus and which are specified by the Representatives and have
compared such amounts, percentages and financial information with the
financial and accounting records of the Company and its subsidiaries and
have found them to be in agreement.
-3-
ANNEX III
DELAYED DELIVERY CONTRACT
___________________, 19__
AMERICAN GENERAL FINANCE CORPORATION,
c/o [Name and address of appropriate
Representatives]
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from American General Finance
Corporation (hereinafter called the "Company"), and the Company agrees to sell
to the undersigned,
[$______________________________________
principal amount] [(insert number of Warrants)] of the Company's [Title of
Securities] (the "Securities"), offered by the Company's Prospectus dated
_______________, 19__, as amended or supplemented by the Prospectus Supplement
dated _______________, 19__, receipt of a copy of which is hereby acknowledged,
at a purchase price of [ % of the principal amount thereof] [, plus accrued
interest, if any, from the date from which interest accrues as set forth below,]
[and accrued amortization, if any, from [ ] [the date from which interest
accrues as set forth below][ to the Delivery Date] [and]] [_____ per Warrant]
and on the further terms and conditions set forth in this contract.
[The undersigned will purchase the Securities from the Company on , 19__
(the "Delivery Date") and interest on the Securities so purchased will accrue
from _________, 19__.]
[The undersigned will purchase the Securities from the Company on the
delivery date or dates and in the [principal amount or amounts] [number or
numbers] set forth below:
[Principal [Date from Which
Delivery Date Amount Interest Accrues [Number
- ------------------------------------------------------------------------------
_________, 19__ $ _________, 19__
_________, 19__ $ ] _________, 19__] ]
Each such date on which Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date".]
Payment for the Securities which the undersigned has agreed to purchase
on [the] [each] Delivery Date shall be made to the Company or its order by
certified or official bank check in Clearing House funds at the office of or by
wire transfer to a bank account specified by the Company, on [the] [such]
Delivery Date upon delivery to the undersigned of the Securities then to be
purchased by the undersigned in definitive form and in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to [the] [such] Delivery Date.
The obligation of the Company to make delivery of and accept payment
for, and the obligation of the undersigned to take delivery of and make payment
for, Securities on [the] [each] Delivery Date shall be subject only to the
conditions that (1) the purchase of the Securities to be made by the undersigned
shall not on [the] [such] Delivery Date be prohibited under the laws of any
jurisdiction to which the undersigned is subject, and (2) the Company shall have
sold to the Underwriters the total [principal amount] [number] of the Securities
less the [principal amount] [number] thereof covered by this and other similar
contracts. The obligation of the undersigned to take delivery of and make
payment for Securities shall not be affected by the failure of any purchaser to
take delivery of and make payment for Securities pursuant to other contracts
similar to this contract. The undersigned represents and warrants that, as of
the date of this contract, the undersigned is not prohibited from purchasing the
Securities hereby agreed to be purchased by it under the laws of any
jurisdiction to which the undersigned is subject.
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinions of counsel for the Company
delivered to the Underwriters in connection therewith.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
This contract may be executed by either of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original but all
such counterparts shall together constitute one and the same instrument.
It is understood that the acceptance by the Company of any Delayed
Delivery Contract (including this contract) is in the Company's sole discretion
and that, without limiting the foregoing, acceptances of such contracts need not
be on a first-come, first-served basis. If
-2-
this contract is acceptable to the Company, it is requested that the Company
sign the form of acceptance below and mail or deliver one of the counterparts
hereof to the undersigned at its address set forth below. This will become a
binding contract between the Company and the undersigned when such counterpart
is so mailed or delivered by the Company.
This contract shall be governed by, and construed in accordance with,
the laws of the State of New York applicable to agreements made and to be
performed in such state.
Yours very truly,
(Name of Purchaser)
By
(Signature)
(Name and Title)
(Address)
Accepted , 19__
AMERICAN GENERAL FINANCE CORPORATION
By
[Title]
PURCHASER - PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser with
whom details of delivery on the Delivery Date may be discussed are as follows:
(Please print)
Telephone No.
Name (including Area Code)
Exhibit 4(a)
AMERICAN GENERAL FINANCE CORPORATION
TO
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION)
TRUSTEE
Indenture
DATED AS OF OCTOBER 1, 1994
(SENIOR DEBT SECURITIES)
TABLE OF CONTENTS
PAGE
PARTIES.................................................................... 1
RECITALS................................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.................................................. 1
Act ............................................................... 2
Additional Amounts................................................. 2
Affiliate.......................................................... 2
Authenticating Agent............................................... 2
Authorized Newspaper............................................... 2
Bearer Security.................................................... 3
Board of Directors................................................. 3
Board Resolution................................................... 3
Business Day....................................................... 3
Certificate of a Firm of Independent Public Accountants............ 3
Commission......................................................... 3
Company ........................................................... 3
Company Request and Company Order.................................. 3
Consolidated Net Worth............................................. 4
Corporate Trust Office............................................. 4
corporation........................................................ 4
coupon ............................................................ 4
Defaulted Interest................................................. 4
Depository......................................................... 4
Dollars or $....................................................... 4
ECU ............................................................... 4
European Community................................................. 4
Event of Default................................................... 4
Foreign Currency................................................... 5
Government Obligations............................................. 5
Holder ............................................................ 5
Indebtedness....................................................... 5
Indenture.......................................................... 6
Indexed Security................................................... 6
interest........................................................... 6
Interest Payment Date.............................................. 6
Judgment Currency.................................................. 6
-i-
Maturity........................................................... 6
Mortgage........................................................... 6
New York Banking Day............................................... 6
New York Facility.................................................. 6
Officers' Certificate.............................................. 6
Opinion of Counsel................................................. 7
Original Issue Discount Security................................... 7
Outstanding........................................................ 7
Paying Agent....................................................... 8
Person ............................................................ 8
Place of Payment................................................... 8
Predecessor Security............................................... 8
Redemption Date.................................................... 9
Redemption Price................................................... 9
Registered Security................................................ 9
Regular Record Date................................................ 9
Required Currency.................................................. 9
Responsible Officer................................................ 9
Security or Securities............................................. 9
Security Register and Security Registrar........................... 9
Special Record Date................................................ 9
Stated Maturity.................................................... 9
Subsidiary......................................................... 9
Trust Indenture Act................................................ 10
Trustee ........................................................... 10
United States...................................................... 10
United States Alien................................................ 10
U.S. Depository or Depository...................................... 10
SECTION 102. Compliance Certificates and Opinions......................... 11
SECTION 103. Form of Documents Delivered to Trustee....................... 11
SECTION 104. Acts of Holders.............................................. 12
SECTION 105. Notices, etc., to Trustee and Company........................ 14
SECTION 106. Notice to Holders of Securities; Waiver...................... 15
SECTION 107. Language of Notices, etc..................................... 16
SECTION 108. Conflict with Trust Indenture Act............................ 16
SECTION 109. Effect of Headings and Table of Contents..................... 16
SECTION 110. Successors and Assigns....................................... 16
-ii-
SECTION 111. Separability Clause.......................................... 16
SECTION 112. Benefits of Indenture........................................ 16
SECTION 113. Governing Law................................................ 17
SECTION 114. Legal Holidays............................................... 17
SECTION 115. Certificate of Firm of Independent Public Accountants
Conclusive................................................. 17
SECTION 116. Judgment Currency............................................ 17
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms of Securities.......................................... 18
SECTION 202. Form of Trustee's Certificate of Authentication.............. 19
SECTION 203. Securities in Global Form.................................... 19
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series......................... 19
SECTION 302. Currency; Denominations...................................... 23
SECTION 303. Execution, Authentication, Delivery and Dating............... 23
SECTION 304. Temporary Securities......................................... 26
SECTION 305. Registration, Registration of Transfer and Exchange.......... 26
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities............. 30
SECTION 307. Payment of Interest and Certain Additional Amounts; Rights
Preserved.................................................. 31
SECTION 308. Persons Deemed Owners........................................ 33
SECTION 309. Cancellation................................................. 34
-iii-
SECTION 310. Computation of Interest...................................... 34
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture...................... 34
SECTION 402. Application of Trust Money................................... 37
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default............................................ 38
SECTION 502. Acceleration of Maturity; Rescission and Annulment........... 39
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee................................................. 41
SECTION 504. Trustee May File Proofs of Claim............................. 41
SECTION 505. Trustee May Enforce Claims without Possession of Securities
or Coupons................................................. 42
SECTION 506. Application of Money Collected............................... 43
SECTION 507. Limitation on Suits.......................................... 43
SECTION 508. Unconditional Right of Holders to Receive Principal and any
Premium, Interest and Additional Amounts................... 44
SECTION 509. Restoration of Rights and Remedies........................... 44
SECTION 510. Rights and Remedies Cumulative............................... 44
SECTION 511. Delay or Omission Not Waiver................................. 45
SECTION 512. Control by Holders of Securities............................. 45
SECTION 513. Waiver of Past Defaults...................................... 45
SECTION 514. Undertaking for Costs........................................ 46
SECTION 515. Waiver of Stay or Extension Laws............................. 46
-iv-
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.......................... 46
SECTION 602. Notice of Defaults........................................... 48
SECTION 603. Certain Rights of Trustee.................................... 48
SECTION 604. Not Responsible for Recitals or Issuance of Securities....... 49
SECTION 605. May Hold Securities.......................................... 49
SECTION 606. Money Held in Trust.......................................... 50
SECTION 607. Compensation and Reimbursement............................... 50
SECTION 608. Disqualifications; Conflicting Interests..................... 51
SECTION 609. Corporate Trustee Required; Eligibility...................... 51
SECTION 610. Resignation and Removal; Appointment of Successor........... 51
SECTION 611. Acceptance of Appointment by Successor....................... 53
SECTION 612. Merger, Conversion, Consolidation or Succession to Business. 54
SECTION 613. Appointment of Authenticating Agent.......................... 55
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders of
Registered Securities...................................... 57
SECTION 702. Preservation of Information; Communications to Holders....... 57
SECTION 703. Reports by Trustee........................................... 57
SECTION 704. Reports by Company........................................... 58
-v-
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales and
Conveyances Permitted Subject to Certain Conditions....... 59
SECTION 802. Rights and Duties of Successor Corporation.................. 59
SECTION 803. Officers' Certificate and Opinion of Counsel................ 60
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.......... 60
SECTION 902. Supplemental Indentures with Consent of Holders............. 63
SECTION 903. Execution of Supplemental Indentures........................ 65
SECTION 904. Effect of Supplemental Indentures........................... 65
SECTION 905. Conformity with Trust Indenture Act......................... 65
SECTION 906. Reference in Securities to Supplemental Indentures.......... 65
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal and any Premium, Interest and
Additional Amounts....................................... 65
SECTION 1002. Maintenance of Office or Agency........................... 66
SECTION 1003. Money for Securities Payments to be Held in Trust......... 67
SECTION 1004. Additional Amounts........................................ 69
SECTION 1005. Payment of Taxes and Other Claims......................... 69
SECTION 1006. Maintenance of Properties................................. 70
SECTION 1007. Statement as to Compliance; Notice of Certain Defaults... 70
-vi-
SECTION 1008. Corporate Existence....................................... 70
SECTION 1009. Limitation on Liens....................................... 71
SECTION 1010. Waiver of Certain Covenants............................... 74
SECTION 1011. Defeasance of Certain Obligations......................... 74
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.................................. 76
SECTION 1102. Election to Redeem; Notice to Trustee..................... 76
SECTION 1103. Selection by Trustee of Securities to be Redeemed......... 76
SECTION 1104. Notice of Redemption...................................... 77
SECTION 1105. Deposit of Redemption Price............................... 78
SECTION 1106. Securities Payable on Redemption Date..................... 78
SECTION 1107. Securities Redeemed in Part............................... 79
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.................................. 80
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities..... 80
SECTION 1203. Redemption of Securities for Sinking Fund................. 80
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article.................................. 81
-vii-
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called................. 82
SECTION 1402. Call, Notice and Place of Meetings........................ 82
SECTION 1403. Persons Entitled to Vote at Meetings...................... 82
SECTION 1404. Quorum; Action............................................ 83
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment
of Meetings............................................. 84
SECTION 1406. Counting Votes and Recording Action of Meetings.......... 85
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 1501. Securities in Foreign Currencies.......................... 85
TESTIMONIUM...............................................................87
SIGNATURE AND SEALS.......................................................87
ACKNOWLEDGMENTS...........................................................88
-viii-
INDENTURE, dated as of October 1, 1994, between AMERICAN GENERAL
FINANCE CORPORATION, an Indiana corporation (hereinafter called the "Company"),
having its principal office at 601 N.W. Second Street, Evansville, Indiana 47708
and THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), a national banking
association, as Trustee (hereinafter called the "Trustee").
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its
lawful purposes debt securities (hereinafter called the "Securities") evidencing
its unsecured and unsubordinated indebtedness and has duly authorized the
execution and delivery of this Indenture to provide for the issuance of the
Securities, unlimited as to principal amount, to bear such rates of interest, if
any, to mature at such time or times, to be issued in one or more series and to
have such other provisions as shall be fixed as hereinafter provided.
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust
Indenture Act (as hereinafter defined) and the rules and regulations of the
Commission (as hereinafter defined) promulgated thereunder that are required to
be part of this Indenture and, to the extent applicable, shall be governed by
such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH
For and in consideration of the premises and the purchase of the
Securities by the Holders (as hereinafter defined) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders of
the Securities or of any 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 in or pursuant to this Indenture or unless the context otherwise
requires:
(a) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the singular;
-1-
(b) 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;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States 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 in the United States at the date of such computation; and
(d) 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.
Certain terms, used principally in Article Six, are defined in
that Article.
"ACT," when used with respect to any Holder, has the meaning
specified in Section 104.
"ADDITIONAL AMOUNTS" means any additional amounts which are
required by a Security or by or pursuant to a Board Resolution, under
circumstances specified therein, to be paid by the Company in respect of
certain taxes, assessments or other governmental charges imposed on
certain Holders and which are owing to such Holders.
"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.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee
pursuant to Section 613 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"AUTHORIZED NEWSPAPER" means a newspaper, in an official language
of the country of publication or in the English language, customarily
published on each Business Day, whether or not published on Saturdays,
Sundays or holidays, and of general circulation in the place in
connection with which the term is used or in the financial community of
such place. Where successive publications are required to be made in
Authorized Newspapers, the
-2-
successive publications may be made in the same or in different
Authorized Newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day.
"BEARER SECURITY" means any Security in the form established
pursuant to Section 201 which is payable to bearer.
"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 one or more resolutions
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, delivered to the Trustee.
"BUSINESS DAY," when used with respect to any Place of Payment or
any other particular location referred to in this Indenture or in the
Securities, means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of
Payment or other location are authorized or obligated by law or
executive order to close except as may otherwise be provided in the form
of Securities of any particular series pursuant to the provisions of
this Indenture.
"CERTIFICATE OF A FIRM OF INDEPENDENT PUBLIC ACCOUNTANTS" means a
certificate signed by an independent public accountant or a firm of
independent public accountants who may be the independent public
accountants regularly retained by the Company or who may be other
independent public accountants. Such accountant or firm shall be
entitled to rely upon an Opinion of Counsel as to the interpretation of
any legal matters relating to such certificate.
"COMMISSION" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act
of 1934, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at
such time.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor corporation.
"COMPANY REQUEST" and "COMPANY ORDER" mean, respectively, a
written request or order signed in the name of the Company by the
Chairman, the President or a Vice President (any reference to a Vice
President of the Company herein shall be deemed to include any Vice
President of the
-3-
Company whether or not designated by a number or a word or words added
before or after the title "Vice President"), and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Company, delivered to the Trustee.
"CONSOLIDATED NET WORTH" means consolidated assets minus
consolidated liabilities determined in accordance with generally
accepted accounting principles.
"CORPORATE TRUST OFFICE" means the office of the Trustee in The
City of New York at which, at any particular time, its corporate trust
business shall be principally administered, which office on the date of
execution of this Indenture is located at 4 Chase MetroTech Center, 3rd
Floor, Brooklyn, New York, 11245, except that with respect to
presentation of Securities for payment or for registration of transfer
or exchange, such term shall mean the office or agency of the Trustee at
which, at any particular time, its corporate agency business shall be
conducted, which office or agency on the date of execution of this
Indenture is located at One Chase Manhattan Plaza, Level I B, New York,
New York, 10081, Attention: Corporate Trust Window.
"CORPORATION" includes corporations, associations, companies and
business trusts.
"COUPON" means any interest coupon appertaining to a Bearer
Security.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DEPOSITORY" has the meaning specified with respect to such term
under the definition of "U.S. Depository."
"DOLLARS" or "$" or any similar reference shall mean the coin or
currency of the United States of America as at the time shall be legal
tender for the payment of public and private debts, except as may
otherwise be provided in the form of Securities of any particular series
pursuant to the provisions of this Indenture.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Community.
"EUROPEAN COMMUNITY" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy
Community.
"EVENT OF DEFAULT" has the meaning specified in Section 501.
-4-
"FOREIGN CURRENCY" means any currency, currency unit or composite
currency, including, without limitation, the ECU, issued by the
government of one or more countries other than the United States of
America or by any recognized confederation or association of such
governments.
"GOVERNMENT OBLIGATIONS", with respect to any Security, means (i)
direct obligations of the government or governments which issued the
currency in which the principal of or any premium or interest on such
Security or any Additional Amounts in respect thereof shall be payable,
in each case where the payment or payments thereunder are supported by
the full faith and credit of such government or governments or (ii)
obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of such government or governments, in each
case where the timely payment or payments thereunder are unconditionally
guaranteed as a full faith and credit obligation by such government or
governments, and which, in the case of (i) or (ii), are not callable or
redeemable at the option of the issuer or issuers thereof, and shall
also include a depository receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a specific
payment of interest on or principal of or other amount with respect to
any such Government Obligation held by such custodian for the account of
the holder of a depository receipt, 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 depository receipt from any amount
received by the custodian in respect of the Government Obligation or the
specific payment of interest on or principal of or other amount with
respect to the Government Obligation evidenced by such depository
receipt.
"HOLDER" means, in the case of a Registered Security, the Person
in whose name the Security is registered in the Security Register and,
in the case of a Bearer Security (or any temporary global Security), the
bearer thereof, and, in the case of any coupon, the bearer thereof.
"INDEBTEDNESS" means all obligations which in accordance with
generally accepted accounting principles would be classified upon a
balance sheet as liabilities, including without limitation by the
enumeration thereof, obligations arising through direct or indirect
guarantees (including agreements, contingent or otherwise, to purchase
Indebtedness or to purchase property or services for the primary purpose
of enabling the payment of Indebtedness or assuring the owner of
Indebtedness against loss) or through agreements, contingent or
otherwise, to supply or advance funds for the payment or purchase of
Indebtedness of others; PROVIDED, HOWEVER, that in determining
Indebtedness of any Person, there shall not be included rental
obligations under any lease of such Person, whether or not such rental
obligations would, under generally accepted accounting principles, be
required to be shown on the balance sheet of such Person as a liability
item.
-5-
"INDENTURE" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include any Officers' Certificate setting
forth the terms of particular series of Securities established as
contemplated by Section 301.
"INDEXED SECURITY" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more
or less than the principal face amount thereof at original issuance.
"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, and, when used with respect to a
Security which provides for the payment of Additional Amounts pursuant
to Section 1004, includes such Additional Amounts.
"INTEREST PAYMENT DATE," when used with respect to any Security,
means the Stated Maturity of an installment of interest on such
Security.
"JUDGMENT CURRENCY" has the meaning specified in Section 116.
"MATURITY," when used with respect to any Security, means the
date on which the principal of such Security or an installment of
principal becomes due and payable as therein or herein provided, whether
at the Stated Maturity or by declaration of acceleration, notice of
redemption, notice of option to elect repayment or otherwise, and
includes the Redemption Date.
"MORTGAGE" means any mortgage, pledge, lien, security interest,
conditional sale or other title retention agreement or other similar
encumbrance.
"NEW YORK BANKING DAY" has the meaning specified in Section 116.
"NEW YORK FACILITY" means the Corporate Trust Office of the
Trustee as long as such Corporate Trust Office is located in The City of
New York and otherwise means the facility of the Trustee located in The
City of New York at which Securities may be presented or surrendered for
payment or registration of transfer or exchange and where notices and
demands to or upon the Company in respect of Securities and this
Indenture may be served, either pursuant to Section 1002 or as so
specified pursuant to Section 301.
"OFFICERS' CERTIFICATE" means a certificate signed by the
Chairman, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Company which certificate complies with the requirements, if applicable,
of Section 314(e) of the Trust Indenture Act and is delivered to the
Trustee.
-6-
"OPINION OF COUNSEL" means a written opinion of counsel who is
(except as otherwise expressly provided in this Indenture) an employee
of or counsel for the Company, or other counsel acceptable to the
Trustee, which opinion complies with the requirements, if applicable, of
Section 314(e) of the Trust Indenture Act.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security issued
pursuant to this Indenture which provides for an amount less than the
principal amount thereof to be due and payable upon acceleration thereof
pursuant to Section 502.
"OUTSTANDING," when used with respect to any Securities, means,
as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, EXCEPT:
(a) any such Security theretofore canceled by the Trustee
or delivered to the Trustee for cancellation;
(b) any such Security, or portion thereof, for whose
payment or redemption money in the necessary amount has been
theretofore deposited pursuant hereto 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 and any
coupons thereto appertaining, PROVIDED that, if such Securities
are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(c) any such Security that has 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 Security in respect of which
there shall have been presented to the Trustee proof satisfactory
to it that such Security is held by a bona fide purchaser in
whose hands such Security is a valid obligation of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the
requisite principal amount of Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder or whether a quorum is present at a meeting of Holders of
Securities, (i) the principal amount of an Original Issue Discount
Security that shall be counted in making such determination and that
shall be deemed to be Outstanding for such purposes shall be equal to
the amount of the principal thereof that would be
-7-
due and payable pursuant to the terms of such Original Issue Discount
Security as of the date of such determination upon acceleration thereof
pursuant to Section 502, (ii) the principal amount of a Security
denominated in a Foreign Currency shall be the Dollar equivalent,
determined on the date of original issuance of such Security, of the
principal amount (or, in the case of an Original Issue Discount
Security, the Dollar equivalent on the date of original issuance of such
Security of the amount determined as provided in (i) above) of such
Security, (iii) the principal amount of an Indexed Security that shall
be counted in making such determination and that shall be deemed to be
Outstanding for such purposes shall be equal to the principal face
amount of such Indexed Security at original issuance, and (iv)
Securities owned by the Company or any other obligor upon the Securities
or any Affiliate of the Company or such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or
waiver, or upon any such determination as to the presence of a quorum,
only Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect
to such Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any coupons appertaining thereto or any
Affiliate of the Company or such other obligor.
"PAYING AGENT" means any Person authorized by the Company to pay
the principal of and any premium or interest on, or any Additional
Amounts with respect to, any Security or any coupon appertaining thereto
on behalf of the Company.
"PERSON" means any individual, corporation, limited liability
company, partnership, joint venture, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"PLACE OF PAYMENT," when used with respect to the Securities of
any series, means the place or places where, subject to the provisions
of Section 1002, the principal of, or any premium or interest on, or any
Additional Amounts with respect to, 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 or a Security to which a mutilated, destroyed, lost or stolen
coupon appertains shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Security or
-8-
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"REDEMPTION DATE," when used with respect to any Security or
portion thereof 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 or
portion thereof to be redeemed, means the price at which it is to be
redeemed as determined by or pursuant to this Indenture.
"REGISTERED SECURITY" means any Security established pursuant to
Section 201 which is registered in the Security Register.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date on the Registered Securities of any series means the date,
if any, specified for that purpose as contemplated by Section 301,
whether or not a Business Day.
"REQUIRED CURRENCY" has the meaning specified in Section 116.
"RESPONSIBLE OFFICER," when used with respect to the Trustee,
means any officer of the Trustee assigned by it to administer corporate
trust matters.
"SECURITY" or "SECURITIES" means any Security or Securities, as
the case may be, authenticated and delivered under this Indenture;
PROVIDED, HOWEVER, that, if at any time there is more than one Person
acting as Trustee under this Indenture, "Securities," with respect to
any such Person, shall mean Securities authenticated and delivered under
this Indenture, exclusive, however, of Securities of any series as to
which such Person is not Trustee.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 305.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest
on the Registered Securities of any series means a date fixed by the
Trustee pursuant to Section 307.
"STATED MATURITY," when used with respect to any Security or any
installment of principal thereof or interest thereon or any Additional
Amounts with respect thereto, means the fixed date on which the
principal of such Security or such installment of principal or interest
is or such Additional Amounts are due and payable, determined as
contemplated by Section 301.
"SUBSIDIARY" means any corporation of which at the time of
determination the Company and/or one or more Subsidiaries owns or
controls
-9-
directly or indirectly more than 50% of the outstanding shares of voting
stock. "Wholly-owned," when used with reference to a Subsidiary, means a
Subsidiary of which all of the outstanding capital stock (except
directors' qualifying shares) is owned by the Company and/or one or more
wholly-owned Subsidiaries.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a
particular provision thereof shall mean such Trust Indenture Act or
provision, as the case may be, as amended or replaced from time to time
or as supplemented from time to time by rules or regulations adopted by
the Commission under or in furtherance of the purposes of such Trust
Indenture Act or provision, as the case may be.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become
such with respect to one or more series of Securities 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 the Securities of that series.
"UNITED STATES," except as otherwise provided in or pursuant to
this Indenture, means the United States of America (including the States
thereof and the District of Columbia), its territories and possessions
and other areas subject to its jurisdiction.
"UNITED STATES ALIEN," except as otherwise provided in or
pursuant to this Indenture, means any Person who, for United States
Federal income tax purposes, is a foreign corporation, a non-resident
alien individual, a non-resident alien fiduciary of a foreign estate or
trust, or a foreign partnership one or more of the members of which is,
for United States Federal income tax purposes, a foreign corporation, a
non-resident alien individual or a non-resident alien fiduciary of a
foreign estate or trust.
"U.S. DEPOSITORY" or "DEPOSITORY" means, with respect to any
Security issuable or issued in the form of one or more global
Securities, the Person designated as U.S. Depository or Depository by
the Company in or pursuant to this Indenture, which Person must be, to
the extent required by applicable law or regulation, a clearing agency
registered under the Securities Exchange Act of 1934, as amended, and,
if so provided with respect to any Security, any successor to such
Person. If at any time there is more than one such Person, "U.S.
Depository" or "Depository" shall mean, with respect to any Securities,
the qualifying entity which has been appointed with respect to such
Securities.
-10-
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Indenture, 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
an Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, provided that in the case
of any such application or request as to which the furnishing of such documents
or either of them is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(a) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(b) 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;
(c) 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 condition or
covenant has been complied with; and
(d) 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 of counsel or
Opinion of Counsel 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 matters upon which his certificate or opinion
is based are erroneous. Any such certificate of counsel or Opinion of Counsel or
representations by counsel may be based, insofar as it relates to
-11-
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 or any Security, they may, but need not, be
consolidated and form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by or pursuant to this
Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor
signed by such Holders in person or by an agent duly appointed in
writing. If, but only if, Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided by or pursuant to this
Indenture to be given or taken by Holders of Securities of such series
may, alternatively, be embodied in and evidenced by the record of
Holders of Securities of such series voting in favor thereof, either in
person or by proxies duly appointed in writing, at any meeting of
Holders of Securities of such series duly called and held in accordance
with the provisions of Article Fourteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it
is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments or so voting at any such
meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and
(subject to Section 601) conclusive in favor of the Trustee and the
Company and any agent of the Trustee or the Company, if made in the
manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 1406.
Without limiting the generality of this Section 104, unless
otherwise provided in or pursuant to this Indenture, a Holder, including
a Depository that is a Holder of a global Security, may make, give or
take, by a proxy or proxies, duly appointed in writing, any request,
demand, authorization, direction, notice, consent, waiver or other
action provided in or pursuant to this Indenture to be made, given or
taken by Holders, and a Depository that
-12-
is a Holder of a global Security may provide its proxy or proxies to the
beneficial owners of interests in any such global Security through such
Depository's standing instructions and customary practices.
The Trustee shall fix a record date for the purpose of
determining the Persons who are beneficial owners of interest in any
permanent global Security held by a Depository entitled under the
procedures of such Depository to make, give or take, by a proxy or
proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in or
pursuant to this Indenture to be made, given or taken by Holders. If
such a record date is fixed, the Holders on such record date or their
duly appointed proxy or proxies, and only such Persons, shall be
entitled to make, give or take such request, demand, authorization,
direction, notice, consent, waiver or other action, whether or not such
Holders remain Holders after such record date. No such request, demand,
authorization, direction, notice, consent, waiver or other action shall
be valid or effective if made, given or taken more than 90 days after
such record date.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The
fact and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities and the principal
amount and serial numbers of Registered Securities held by any Person,
and the date of holding the same, shall be proved by the Security
Register.
(d) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may be
proved by the production of such Bearer Securities or by a certificate
executed, as depositary, by any trust company, bank, banker or other
depositary reasonably acceptable to the Company, wherever situated, if
such certificate shall be deemed by the Company and the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had
on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities,
if such certificate or affidavit is deemed by the Company and the
Trustee to be satisfactory. The Trustee and the Company may assume that
such ownership of any Bearer Security continues until (i) another
certificate or affidavit bearing a later date issued
-13-
in respect of the same Bearer Security is produced, or (ii) such Bearer
Security is produced to the Trustee by some other Person, or (iii) such
Bearer Security is surrendered in exchange for a Registered Security, or
(iv) such Bearer Security is no longer Outstanding. The ownership,
principal amount and serial numbers of Bearer Securities held by any
Person, and the date of holding the same, may also be proved in any
other manner which the Company and the Trustee deem sufficient.
(e) If the Company shall solicit from the Holders of any
Registered Securities any request, demand, authorization, direction,
notice, consent, waiver or other action, the Company may, at its option,
by Board Resolution, fix in advance a record date for the determination
of Holders of Registered Securities entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other
action, but the Company shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other action may be given before or after
such record date, but only the Holders of Registered Securities of
record at the close of business on such record date shall be deemed to
be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Securities have authorized or agreed
or consented to such request, demand, authorization, direction, notice,
consent, waiver or other action, and for that purpose the Outstanding
Securities shall be computed as of such record date; PROVIDED that no
such authorization, agreement or consent by the Holders of Registered
Securities on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other action 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, any Security Registrar, any Paying
Agent, any Authenticating Agent or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(a) 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,
or
-14-
(b) 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, by United States
first-class mail, postage prepaid, to the Company addressed to the
attention of its Treasurer 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 OF SECURITIES; WAIVER.
Except as otherwise expressly provided in or pursuant to the
provisions of this Indenture, where this Indenture provides for notice to
Holders of Securities of any event,
(a) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed by United States
first-class mail, postage prepaid, to each Holder of a Registered
Security affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice; and
(b) such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in The City of New
York and in such other city or cities, if any, as may be specified in
such Securities and, if the Securities of such series are then listed on
any stock exchange outside the United States, in an Authorized Newspaper
in such city as the Company shall advise the Trustee that such stock
exchange so requires, on a Business Day at least twice, the first such
publication to be not earlier than the earliest date and the second such
publication to be not later than the latest date prescribed for the
giving of such notice.
In any case where notice to Holders of Registered Securities is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of a Registered Security shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided. 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 to Holders of
Registered Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder.
In case by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause it
shall be impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as shall
be given with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided
-15-
above, nor any defect in any notice so published, shall affect the sufficiency
of any notice to Holders of Registered Securities given as provided herein.
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 of Securities 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.
SECTION 107. LANGUAGE OF NOTICES, ETC.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that, if the Company so elects, any published notice
may be in an official language of the country of publication.
SECTION 108. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required to be a part of and govern
this Indenture, such required provision shall control.
SECTION 109. 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 110. 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 111. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in any Security or
coupon shall be invalid, illegal or unenforceable, either wholly or partially,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 112. BENEFITS OF INDENTURE.
Nothing in this Indenture or in any Security or coupon, express
or implied, shall give to any Person, other than the parties hereto, any
Security Registrar, any Paying Agent, any Authenticating Agent and their
respective successors hereunder, and the Holders of Securities or coupons, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
-16-
SECTION 113. GOVERNING LAW.
This Indenture and the Securities and coupons, including the
validity thereof, shall be governed by and construed in accordance with the laws
of the State of Indiana, except that the rights, limitations of rights,
obligations, duties and immunities of the Trustee shall be governed by the laws
of the State of New York.
SECTION 114. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date,
Maturity 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
the Securities or coupons other than a provision in the Securities or coupons of
any series which specifically states that such provision shall apply in lieu of
this Section) payment of principal or any premium or interest or Additional
Amounts 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
Maturity or Stated Maturity, and no interest shall accrue on the amount so
payable for the period from and after such Interest Payment Date, Redemption
Date, Maturity or Stated Maturity, as the case may be.
SECTION 115. CERTIFICATE OF FIRM OF INDEPENDENT PUBLIC
ACCOUNTANTS CONCLUSIVE.
A Certificate of a Firm of Independent Public Accountants shall
be conclusive evidence of the Consolidated Net Worth of the Company as of the
date of any determination. Notwithstanding the foregoing, the Trustee shall be
under no duty to require that it be furnished with a Certificate of a Firm of
Independent Public Accountants either annually or at any other periodic interval
or in any event unless evidence of the Consolidated Net Worth of the Company
shall be required.
SECTION 116. JUDGMENT CURRENCY.
The Company agrees, to the fullest extent that it may effectively
do so under applicable law, that (a) if for the purpose of obtaining judgment in
any court it is necessary to convert the sum due on the Securities of any series
from the currency in which such sum is payable in accordance with the terms of
such Securities (the "Required Currency") into a currency in which a judgment
will be rendered (the "Judgment Currency"), the rate of exchange used shall be
the rate at which in accordance with normal banking procedures the Trustee could
purchase in The City of New York the Required Currency with the Judgment
Currency on the New York Banking Day preceding that on which a final
unappealable judgment is rendered and (b) its obligations under this Indenture
to make payments in the Required Currency (i) shall not be discharged or
satisfied by any tender, or any recovery pursuant to any judgment (whether or
not entered in accordance with subsection (a)), in any currency other than the
Required Currency, except to the extent that such tender or recovery shall
result in the actual receipt, by the payee, of the full amount of the Required
-17-
Currency expressed to be payable in respect of such payments, (ii) shall be
enforceable as an alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or required by law or executive order to
close.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS OF SECURITIES.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series, and related coupons shall be in such form or
forms (including permanent or temporary global form) as shall be established in
one or more indentures supplemental hereto or by or pursuant to a Board
Resolution in accordance with Section 301, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by or pursuant to this Indenture or any indenture supplemental hereto
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as may be required
to comply with any law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any stock exchange or as may consistently
herewith be determined by the officers executing such Securities or coupons, as
evidenced by their execution of the Securities or coupons.
If the forms of Securities or coupons of any 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 Company Order contemplated by Section 303 for the
authentication and delivery of such Securities or coupons.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, the Securities of each series shall be
issuable in registered form without coupons.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers of the Company executing such
Securities or coupons, as evidenced by their execution of such Securities or
coupons.
-18-
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 613, the Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
____________________________
AS TRUSTEE
By ____________________________
AUTHORIZED OFFICER
SECTION 203. SECURITIES IN GLOBAL FORM.
Unless otherwise provided in or pursuant to this Indenture, the
Securities shall not be issuable in global form. If Securities of a series shall
be issuable in global form, any such Security may provide that it or any number
of such Securities shall represent the aggregate amount of all Outstanding
Securities of such series (or such lesser amount as is permitted by the terms
thereof) from time to time endorsed thereon and may also provide that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be increased or reduced to reflect exchanges. Any endorsement of any
Security in global form to reflect the amount, or any increase or decrease in
the amount, or changes in the rights of Holders, of Outstanding Securities
represented thereby shall be made in such manner and by such Person or Persons
as shall be specified therein or in the Company Order to be delivered pursuant
to Section 303 or 304 with respect thereto. Subject to the provisions of Section
303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions given by
the Person or Persons specified therein or in the applicable Company Order. If a
Company Order pursuant to Section 303 or 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to a Security in global
form shall be in writing but need not be accompanied by or contained in an
Officers' Certificate and need not be accompanied by an Opinion of Counsel.
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.
-19-
The Securities may be issued in one or more series. The terms of
the Securities in addition to or in lieu of those set forth in this Indenture
shall be determined or established in any one or more of the following ways: (1)
in one or more indentures supplemental hereto; (2) in one or more Board
Resolutions (in which case such Board Resolutions shall be included in or
attached to an Officers' Certificate); or (3) in a manner specified in or
authorized by one or more Board Resolutions (in which case such Board
Resolutions and any administrative procedures relating to the manner in which
the terms of Securities are to be determined or established shall be included in
or attached to an Officers' Certificate). The terms to be so determined or
established shall include:
(a) the title of the Securities and the series in which such
Securities shall be included;
(b) any limit upon the aggregate principal amount of the
Securities of such title or the Securities of such 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 such title or series
pursuant to Section 304, 305, 306, 906 or 1107);
(c) whether such Securities are to be issuable as Registered
Securities, Bearer Securities (with or without coupons or both) or both,
any restrictions applicable to the offer, sale or delivery of Bearer
Securities of the series, the terms, if any, upon which Bearer
Securities of the series may be exchanged for Registered Securities of
the series and vice versa, whether any Securities of the series are to
be issuable initially in temporary global form and whether any
Securities of the series are to be issuable in permanent global form
with or without coupons and, if so, (1) when any of such Securities are
to be issued in global form, (2) whether beneficial owners of interests
in any such permanent global Security may exchange such interests for
certificated Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any
such exchanges may occur, if other than in the manner provided in
Section 305, and (3) the name of the U.S. Depository or the Depository,
as the case may be, with respect to any global Security;
(d) the date as of which any Bearer Securities of the series and
any global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first
Security of the series to be issued;
(e) if Securities of the series are to be issuable as Bearer
Securities, whether interest in respect of any portion of a temporary
Bearer Security in global form (representing all or any portion of the
Outstanding Bearer Securities of the series) payable in respect of an
Interest Payment Date therefor prior to the exchange, if any, of such
temporary Bearer Security for
-20-
definitive Securities of the series shall be paid to any clearing
organization with respect to the portion of such temporary Bearer
Security held for its account and, in such event, the terms and
conditions (including any certification requirements) upon which any
such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest
Payment Date;
(f) the date or dates on which the principal of such Securities
is payable or the manner in which such dates are to be determined;
(g) the rate or rates at which such Securities shall bear
interest, if any, or the manner in which such rate or rates shall be
determined, the date or dates from which such interest shall accrue or
the manner in which such dates shall be determined, the Interest Payment
Dates on which any such interest shall be payable and the Regular Record
Date, if any, for any interest payable on any such Registered Securities
on any Interest Payment Date, whether and under what circumstances
Additional Amounts on such Securities or any of them shall be payable
and, if so, whether the Company has the option to redeem the affected
Securities rather than pay such Additional Amounts, and the basis upon
which interest shall be calculated if other than that of a 360-day year
consisting of twelve 30-day months;
(h) the place or places, if any, other than or in addition to The
City of New York, where, subject to Section 1002, the principal of and
any premium and interest on or Additional Amounts, if any, payable in
respect of, such Securities shall be payable, any Registered Securities
of the series may be surrendered for registration of transfer,
Securities of the series may be surrendered for exchange and any notices
and demands to or upon the Company in respect of such Securities and
this Indenture may be served;
(i) whether Securities of the series are to be redeemable at the
option of the Company and, if so, the period or periods within which,
the price or prices at which and the terms and conditions upon which
such Securities may be redeemed, in whole or in part, at the option of
the Company;
(j) the obligation, if any, of the Company to redeem such
Securities pursuant to any sinking fund or analogous provisions or to
repay such Securities at the option of a Holder thereof and, if so, the
period or periods within which, the price or prices at which and the
other terms and conditions upon which such Securities shall be redeemed
or repaid, in whole or in part, pursuant to such obligation, and any
provisions for the remarketing of such Securities so redeemed or repaid;
(k) the denominations in which any Registered Securities of the
series shall be issuable, if other than denominations of $1,000 and any
integral
-21-
multiple thereof, and the denomination or denominations in which any
Bearer Securities of the series shall be issuable, if other than the
denomination of $5,000;
(l) if other than the full principal amount thereof, the portion
of the principal amount of any such Securities which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the manner in which such portion is to be determined;
(m) if other than Dollars, the Foreign Currency in which payment
of the principal of and any premium and interest on, and any Additional
Amounts in respect of, such Securities shall be payable;
(n) if the principal of and any premium or interest on, and any
Additional Amounts in respect of, such Securities are to be payable, at
the election of the Company or a Holder thereof or otherwise, in a coin
or currency, including a Foreign Currency, other than that in which such
Securities are stated to be payable, the period or periods within which,
and the other terms and conditions upon which, such election may be
made, and the time and manner of determining the exchange rate between
the coin or currency in which such Securities are denominated or stated
to be payable and the coin or currency in which such Securities or any
of them are to be so payable;
(o) whether the amount of payments of principal of and any
premium or interest on, and any Additional Amounts in respect of, such
Securities may be determined with reference to an index, formula or
other method or methods (which index, formula or method or methods may
be based, without limitation, on one or more currencies, commodities,
equity indices or other indices) and, if so, the terms and conditions
upon which and the manner in which such amounts shall be determined and
paid or payable;
(p) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to Securities
of the series, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(q) whether any of such Securities are to be issuable upon the
exercise of warrants and, if so, the details with respect thereto,
including the time, manner and place for such Securities to be
authenticated and delivered;
(r) the form or forms of such Securities, if any, and, if any
Securities of such series are to be issuable in definitive form (whether
upon original issue or upon exchange of a temporary Security of such
series) only upon receipt of certain certificates or other documents or
satisfaction of other
-22-
conditions, then the form and terms of such certificates, documents or
conditions;
(s) if there is more than one Trustee, the identity of the
Trustee and, if not the Trustee, the identity of each Security
Registrar, Paying Agent or Authenticating Agent with respect to such
Securities;
(t) the applicability, if any, of Section 1011 to the Securities
of such series and any provisions in modification of, in addition to or
in lieu of any of the provisions of Section 1011; and
(u) any other terms of such Securities (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and any coupons appertaining to
any Bearer Securities of such series shall be substantially identical except as
to coin or currency of payments due thereunder, denomination, the rate or rates
of interest, if any, or the method of determining the rate of interest, if any,
the date or dates from which interest, if any, shall accrue, and Stated Maturity
and except as may otherwise be provided in the terms of such Securities
determined or established as provided above. All Securities of any one series
need not be issued at the same time and, unless otherwise provided, a series may
be reopened for issuances of additional Securities of such series.
If any of the terms of the Securities or coupons of any series
are established by action that is taken both pursuant to a Board Resolution and
at or prior to the delivery of the Officers' Certificate setting forth the terms
of such series, 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 such series.
SECTION 302. CURRENCY; DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, the principal of, any premium and interest
on and any Additional Amounts with respect to the Securities shall be payable in
Dollars. Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, any Registered Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of a series shall be issuable in the denomination of $5,000.
Securities not denominated in Dollars shall be issuable in such denominations as
are established with respect to such Securities in or pursuant to this
Indenture.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman, its President or one of its Vice Presidents, under its corporate seal
reproduced thereon
-23-
attested by its Treasurer or Secretary or one of its Assistant Treasurers or
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile. Coupons shall bear the facsimile signature of the
Treasurer or any Assistant Treasurer of the Company.
Securities and coupons 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 on the date(s) such Securities were
issued.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series,
together with any coupons appertaining thereto, executed by the Company to the
Trustee for authentication, together with the Board Resolution and Officers'
Certificate or supplemental indenture with respect to such Securities referred
to in Sections 201 and 301 and a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order and subject to the provisions hereof shall authenticate and deliver such
Securities. If all the Securities of any series are not to be issued at one time
and if the Board Resolution or supplemental indenture establishing such series
shall so permit, such Company Order may set forth procedures acceptable to the
Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate, maturity date, date
of issuance and date from which interest shall accrue. In authenticating
Securities hereunder, and accepting the additional responsibilities under this
Indenture in relation to such Securities and any coupons appertaining thereto,
the Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon,
(a) an Opinion of Counsel stating substantially to the effect
that,
(1) the form and terms of such Securities and coupons, if
any, have been established in conformity with the provisions of
this Indenture; and
(2) such Securities and coupons, 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 against the Company in accordance with
their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws relating to or affecting the
enforcement of creditors' rights and by general equity
principles, and except further as enforcement thereof may be
limited by (i) requirements that a claim (or a Foreign Currency
judgment in respect of such claim) be converted into Dollars at a
rate of exchange prevailing on a date determined
-24-
pursuant to applicable law or (ii) governmental authority to
limit, delay or prohibit the making of payments in a Foreign
Currency or payments outside the United States (and with such
other exceptions as to enforceability as such counsel shall state
are not materially adverse to the Holders); and
(b) an Officers' Certificate stating, to the best knowledge of
each signer of such certificate, that no event which is, or after notice
or lapse of time would become, an Event of Default with respect to any
of the Securities shall have occurred and be continuing.
The Trustee shall not be required to authenticate or to cause an Authenticating
Agent 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.
If all the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver an Opinion of Counsel and Officers'
Certificate at the time of issuance of each such Security, but such opinion and
certificate, with appropriate modifications, shall be delivered at or before the
time of issuance of the first Security of such series to be issued.
If the Company shall establish pursuant to Section 301 that the
Securities of a series are to be issued in whole or in part in the form of one
or more global Securities, the Company shall execute and the Trustee shall, in
accordance with this Section and the Company Order with respect to such series,
authenticate and deliver one or more global Securities in permanent form that
(i) shall represent and shall be denominated in an amount equal to the aggregate
principal amount of the Outstanding Securities of such series to be represented
by such global Security or Securities, (ii) shall be registered, if in
registered form, in the name of the Depository for such global Security or
Securities or the nominee of such Depository, (iii) shall be delivered by the
Trustee to such Depository or pursuant to such Depository's instruction and (iv)
shall bear a legend substantially to the following effect: "Unless and until it
is exchanged in whole or in part for Securities in certificated form, this
Security may not be transferred except as a whole by the Depository to a nominee
of the Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository" or to such other
effect as the Depository and the Trustee may agree.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security and any temporary Bearer Security in global
form shall be dated as of the date specified as contemplated by Section 301.
No Security or coupon appertaining thereto 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 in Section 202
-25-
or 613 executed by or on behalf of the Trustee by the manual signature of one of
its authorized officers or by an Authenticating Agent. Such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Except as permitted by
Section 306 or 307, the Trustee shall not authenticate and deliver any Bearer
Security unless all appurtenant coupons for interest then matured have been
detached and canceled.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series,
the Company may execute and deliver to the Trustee, and upon Company Order the
Trustee shall authenticate and deliver, in the manner provided in Section 303,
temporary Securities of such series 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, in registered form or, if authorized in or pursuant to this
Indenture, in bearer form with one or more coupons or without coupons, and with
such appropriate insertions, omissions, substitutions and other variations as
the officers of the Company executing such Securities may determine, as
evidenced by their execution of such Securities. Such temporary Securities may
be in global form.
Except in the case of temporary Securities in global form, which
shall be exchanged in accordance with the provisions thereof, if temporary
Securities of any series are issued, the Company shall cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of such definitive Securities, the temporary Securities of such
series shall be exchangeable for definitive Securities of such series containing
identical terms and provisions upon surrender of the temporary Securities of
such series at the office or agency of the Company maintained for such purpose
pursuant to Section 1002, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series (accompanied
by any unmatured coupons appertaining thereto), the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like aggregate
principal amount of definitive Securities of authorized denominations of the
same series containing identical terms and provisions; PROVIDED, HOWEVER, that
no definitive Bearer Security, except as provided pursuant to Section 301, shall
be delivered in exchange for a temporary Registered Security; and PROVIDED,
FURTHER, that a definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions set forth in or
pursuant to this Indenture. Unless otherwise specified as contemplated by
Section 301 with respect to a temporary global Security, 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.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE.
With respect to the Registered Securities, if any, of each series
of Securities, the Company shall cause to be kept at an office or agency of the
Company maintained pursuant to Section 1002 a register (each such register being
herein sometimes referred to
-26-
as the "Security Register") in which, subject to such reasonable regulations as
it may prescribe, the Company shall provide for the registration of the
Registered Securities of each series and of transfers of the Registered
Securities of each series. Such office or agency shall be the "Security
Registrar" for the Registered Securities, if any, of each series of Securities.
In the event that the Trustee shall not be the Security Registrar with respect
to a particular series of Securities, it shall have the right to examine the
Security Register for such series at all reasonable times. The Chase Manhattan
Bank (National Association) is hereby appointed Security Registrar for each
series of Securities.
Upon surrender for registration of transfer of any Registered
Security of any series at any office or agency of the Company maintained for
that series pursuant to Section 1002, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount, bearing a
number not contemporaneously outstanding, and containing identical terms and
provisions.
At the option of the Holder, Registered Securities of any series
(except a global Security representing all or a portion of such series) may be
exchanged for other Registered Securities of the same series, of any authorized
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Securities to be exchanged at any
such office or agency. Whenever any Registered Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Securities which the Holder making the exchange is
entitled to receive.
If provided in or pursuant to this Indenture with respect to
Securities of any series, at the option of the Holder, Bearer Securities of such
series may be exchanged for Registered Securities or Bearer Securities (if
Bearer Securities of such series are issuable in more than one denomination) of
the same series containing identical terms and provisions, of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Bearer Securities to be exchanged at any office or agency of the Company
maintained for such series, with all unmatured coupons and all matured coupons
in default thereto appertaining. If the Holder of a Bearer Security is unable to
produce any such unmatured coupon or coupons or matured coupon or coupons in
default, such exchange may be effected if the Bearer Securities are accompanied
by payment in funds acceptable to the Company and the Trustee in an amount equal
to the face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
is furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to any Paying Agent any such missing coupon in respect
of which such a payment shall have been made, such Holder shall be entitled to
receive the amount of such payment; PROVIDED, HOWEVER, that, except as otherwise
provided in Section 1002, interest represented by coupons shall be payable only
upon presentation and surrender of those coupons at an office or agency for such
series located outside the United States. Notwithstanding the foregoing, in case
a Bearer Security of any series is
-27-
surrendered at any such office or agency in exchange for a Registered Security
of the same series and like tenor after the close of business at such office or
agency on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such Bearer Security
shall be surrendered without the coupon relating to such Interest Payment Date
or proposed date for payment, as the case may be (or, if such coupon is so
surrendered with such Bearer Security, such coupon shall be returned to the
person so surrendering the Bearer Security), and interest or Defaulted Interest,
as the case may be, shall not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but shall be payable only
to the Holder of such coupon when due in accordance with the provisions of this
Indenture.
If expressly provided in or pursuant to this Indenture with
respect to the Securities of any series, at the option of the Holder, Registered
Securities of such series may be exchanged for Bearer Securities upon such terms
and conditions as may be provided in or pursuant to this Indenture with respect
to such series.
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.
Notwithstanding the foregoing, except as otherwise provided in or
pursuant to this Indenture, any global Security shall be exchangeable for
definitive Securities only if (i) the Depository is at any time unwilling,
unable or ineligible to continue as Depository and a successor depository is not
appointed by the Company within 90 days of the date the Company is so informed
in writing, (ii) the Company executes and delivers to the Trustee a Company
Order to the effect that such global Security shall be so exchangeable, or (iii)
an Event of Default has occurred and is continuing with respect to the
Securities of the same series. If the beneficial owners of interests in a global
Security are entitled to exchange such interests for definitive Securities of
such series, then without unnecessary delay but in any event not later than the
earliest date on which such interests may be so exchanged, the Company shall
deliver to the Trustee definitive Securities in such form and denominations as
are required by or pursuant to this Indenture, and of the same series as,
containing identical terms as and in aggregate principal amount equal to the
principal amount of, such global Security, executed by the Company. On or after
the earliest date on which such interests may be so exchanged, such global
Security shall be surrendered from time to time by the U.S. Depository or such
other Depository as shall be specified in the Company Order with respect
thereto, and in accordance with instructions (which instructions shall be in
writing but need not be contained in or accompanied by an Officers' Certificate
or be accompanied by an Opinion of Counsel) given by the Company to the Trustee
and such U.S. Depository or other Depository, as the case may be, to the
Trustee, as the Company's agent for such purpose, to be exchanged, in whole or
in part, for definitive Securities as described above, without charge. The
Trustee shall authenticate and make available for delivery, in exchange for each
portion of such surrendered global Security, a like aggregate principal
-28-
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such global Security to be exchanged, which
(unless such Securities are not issuable both as Bearer Securities and as
Registered Securities, in which case the definitive Securities exchanged for the
global Security shall be issuable only in the form in which the Securities are
issuable, as provided in or pursuant to this Indenture) shall be in the form of
Bearer Securities or Registered Securities, or any combination thereof, as shall
be specified by the beneficial owner thereof; PROVIDED, HOWEVER, that no such
exchanges may occur during a period beginning at the opening of business 15 days
before any selection of Securities for redemption of the same series and
containing identical terms and ending on the relevant Redemption Date; and
PROVIDED, FURTHER, that (unless otherwise provided in or pursuant to this
Indenture) no Bearer Security delivered in exchange for a portion of a global
Security shall be mailed or otherwise delivered to any location in the United
States. Promptly following any such exchange in part, such global Security shall
be returned by the Trustee to the U.S. Depository or such other Depository
referred to above, as the case may be, in accordance with the instructions of
the Company referred to above, with an endorsement thereon to reflect the
decrease in the aggregate amount of Outstanding Securities represented thereby.
If a Registered Security is issued in exchange for any portion of a global
Security after the close of business at the office or agency for such Security
where such exchange occurs on or after (i) any Regular Record Date for such
Security and before the opening of business at such office or agency on the next
Interest Payment Date, or (ii) any Special Record Date for such Security and
before the opening of business at such office or agency on the related proposed
date for payment of interest or Defaulted Interest, as the case may be, interest
shall not be payable on such Interest Payment Date or proposed date for payment,
as the case may be, in respect of such Registered Security, but shall be payable
on such Interest Payment Date or proposed date for payment, as the case may be,
only to the Person to whom interest in respect of such portion of such global
Security shall be payable in accordance with the provisions of this Indenture.
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 entitling the Holders thereof to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange or redemption shall (if so required by
the Company or the Security Registrar) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar therefor 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 or redemption of Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906 or 1107 not
involving any transfer.
-29-
Except as otherwise provided in or pursuant to this Indenture,
the Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the selection for redemption of Securities of
like tenor and the same series under Section 1103 and ending at the close of
business (A) if Securities of the series are issuable only as Registered
Securities, on the day of the mailing of the relevant notice of redemption, and
(B) if Securities of the series are issuable as Bearer Securities, on the day of
the first publication of the relevant notice of redemption or, if Securities of
the series are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, (ii) to register
the transfer of or exchange any Registered Security so selected for redemption
in whole or in part, except, in the case of any Security to be redeemed in part,
the portion thereof not to be redeemed, (iii) to exchange any Bearer Security so
selected for redemption, except, to the extent provided with respect to such
Bearer Security, that such Bearer Security may be exchanged for a Registered
Security of like tenor and the same series, provided that such Registered
Security shall be immediately surrendered for redemption with written
instruction for payment consistent with the provisions of this Indenture or (iv)
to issue, register the transfer of or exchange any Security which, in accordance
with its terms, has been surrendered for repayment at the option of the Holder,
except the portion, if any, of such Security not to be so repaid.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it 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 principal amount, containing identical terms and
provisions and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon, and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the absence
of notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and principal
amount, containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or
coupon 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 or coupon;
PROVIDED, HOWEVER, that payment of principal of and any premium or interest on
or any Additional Amounts with respect to any
-30-
Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an office or agency for such Securities located outside the
United States and, unless otherwise specified as contemplated by Section 301,
any interest on Bearer Securities and any Additional Amounts with respect
thereto shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
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, with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security to which a destroyed, lost or stolen
coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
and its coupons, if any, or the destroyed, lost or stolen coupon 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 and their coupons, if any, 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 or
coupons.
SECTION 307. PAYMENT OF INTEREST AND CERTAIN ADDITIONAL AMOUNTS;
RIGHTS PRESERVED.
Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, interest on and any
Additional Amounts with respect to any Registered 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 and any interest on any Bearer Security which is payable, and
is punctually paid or duly provided for, on any Interest Payment Date shall be
paid upon surrender of the coupon appertaining thereto in respect of the
interest due on such Interest Payment Date. Unless otherwise provided in or
pursuant to this Indenture, in case a Bearer Security is surrendered in exchange
for a Registered Security after the close of business at an office or agency for
such Security on any Regular Record Date therefor and before the opening of
business at such office or agency on the next succeeding Interest Payment Date
therefor, such Bearer Security shall be surrendered without the coupon relating
to such Interest Payment Date and interest shall not be payable on such Interest
Payment Date in respect of the Registered Security issued in exchange for such
Bearer Security, but shall be payable only to the Holder of such coupon when due
in accordance with the provisions of this Indenture.
-31-
Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, any interest on and
any Additional Amounts with respect to any Registered Security of any series
which is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date for such Registered Security (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder thereof 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 subsection (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities
affected (or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each such Registered Security and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when so deposited
to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this subsection provided. Thereupon, the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, United States first-class
postage prepaid, to each Holder of such Registered Securities (or their
respective Predecessor Securities) at the address of such Holder as it
appears in the Security Register, not less than 10 days prior to such
Special Record Date. The Trustee may, in its discretion, in the name and
at the expense of the Company, cause a similar notice to be published at
least once in an Authorized Newspaper of general circulation in The City
of New York, but such publication shall not be a condition precedent to
the establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid
to the Persons in whose names such Registered Securities (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following subsection (b). In case a Bearer Security of
any series is surrendered at the office or agency for such Security in
exchange for a Registered Security of such series after the close of
business at such office or agency on any Special Record Date and before
the opening of business at
-32-
such office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without
the coupon relating to such proposed date of payment and Defaulted
Interest shall not be payable on such proposed date of payment in
respect of the Registered Security issued in exchange for such Bearer
Security, but shall be payable only to the Holder of such coupon when
due in accordance with the provisions of this Indenture.
(b) The Company may make payment of any Defaulted Interest on
such Registered Securities in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this subsection (b), such manner of
payment shall be deemed practicable by the Trustee.
At the option of the Company, interest on Registered Securities
of any series that bear interest may be paid by mailing a check to the address
of the Person entitled thereto as such address shall appear in the Security
Register or by transfer to an account maintained by the payee with a bank
located in the United States or by any other means permitted in the form of
Securities of any particular series pursuant to the provisions of this
Indenture.
Subject to the foregoing provisions of this Section and Section
305, 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 Registered 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 Registered Security is
registered in the Security Register as the owner of such Registered Security for
the purpose of receiving payment of the principal of and any premium and
(subject to Sections 305 and 307) interest on, and any Additional Amounts in
respect of, such Registered Security and for all other purposes whatsoever,
whether or not any payment with respect to such Registered Security shall 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.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company or
the Trustee may treat the bearer of any Bearer Security and the bearer of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not any payment with respect to
-33-
such Security or coupon 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.
No holder of any beneficial interest in any global Security held
on its behalf by a Depository shall have any rights under this Indenture with
respect to such global Security, and such Depository may be treated by the
Company, the Trustee, and any agent of the Company or the Trustee as the owner
of such global Security for all purposes whatsoever. None of the Company, the
Trustee, any Paying Agent or the Security Registrar will have any responsibility
or liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests of a global Security or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
SECTION 309. CANCELLATION.
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee, and any such Securities and coupons, as well as Securities and
coupons surrendered directly to the Trustee for any such purpose, shall be
promptly canceled by the Trustee. 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 for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by or pursuant to this Indenture.
All canceled Securities and coupons held by the Trustee shall be disposed of in
accordance with its customary practices, subject to applicable law.
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 consisting 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 right of registration of transfer or exchange
of Securities herein expressly provided for and any right to receive Additional
Amounts, as provided in Section 1004), and the Trustee, on demand of and at the
expense of the Company, shall
-34-
execute such instruments as may be requested by the Company acknowledging
satisfaction and discharge of this Indenture, when
(a) either
(1) all Securities theretofore authenticated and delivered
and all coupons, if any, appertaining thereto (other than (i)
coupons appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after such
exchange, whose surrender is not required or has been waived as
provided in Section 305, (ii) Securities and coupons which have
been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 306, (iii) coupons appertaining to
Securities called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as provided by
Section 1106 and (iv) Securities and coupons 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
(2) all such Securities and, in the case of (i) and (ii)
below, any coupons appertaining thereto 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
(iii) if redeemable at the option of the Company, 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
irrevocably deposited or caused to be irrevocably deposited
(except as provided in Section 402) with the Trustee, as trust
funds and/or obligations in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders
of the Securities of that series, (i) money in an amount, or (ii)
Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms,
-35-
without consideration of any reinvestment thereof, will provide
not later than the opening of business on the due dates of any
payment of principal and any premium, interest and Additional
Amounts with respect thereto money in an amount or (iii) a
combination thereof, sufficient to pay and discharge the entire
indebtedness on such Securities and coupons not theretofore
delivered to the Trustee for cancellation, including the
principal of, any premium and interest on, and any Additional
Amounts with respect to such Securities and coupons, 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
thereof, as the case may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee a Certificate of a
Firm of Independent Public Accountants certifying as to the sufficiency
of the amounts deposited pursuant to paragraph (2) of subsection (a) of
this Section for payment of the principal and any premium, interest and
Additional Amounts with respect thereto on the dates such payments are
due, and 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.
In the event there are Securities of two or more series
hereunder, the Trustee shall be required to execute an instrument acknowledging
satisfaction and discharge of this Indenture only if requested to do so with
respect to Securities of all series as to which it is Trustee and if the other
conditions thereto are met. In the event there are two or more Trustees
hereunder, then the effectiveness of any such instrument shall be conditioned
upon receipt of such instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 607, the obligations
of the Trustee to any Authenticating Agent under Section 613 and, if money
and/or Government Obligations shall have been irrevocably deposited with the
Trustee pursuant to paragraph (2) of subsection (a) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive.
In the event that, subsequent to the date a discharge is effected
pursuant to this Section 401, Additional Amounts in excess of those established
as of the date such discharge is effected become payable in respect of any
Securities, in order to preserve the benefits of the discharge established
hereunder, the Company shall irrevocably deposit or cause to be irrevocably
deposited in accordance with provisions of this Section 401, within ten Business
Days prior to the date the first payment in respect of any portion of such
excess Additional Amounts becomes due, such additional funds as are necessary to
satisfy the
-36-
provisions of this Section 401 as if a discharge were being effected as of the
date of such subsequent deposit. Failure to comply with the requirements of this
paragraph shall result in the termination of the benefits of the discharge
established by this Section 401.
SECTION 402. APPLICATION OF TRUST MONEY.
(a) Subject to the provisions of the last paragraph of Section
1003, all money and/or Government Obligations deposited with the Trustee
pursuant to Section 401 or Section 1011 or pursuant to a supplemental
indenture entered into pursuant to Section 901(i), and all money
received by the Trustee in respect of any such Government Obligations,
shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the coupons 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, interest
and Additional Amounts for whose payment such money has or Government
Obligations have been deposited with or received by the Trustee or to
make mandatory sinking fund payments or analogous payments as
contemplated by Section 401 or Section 1011 or any such supplemental
indenture; but such money and Government Obligations need not be
segregated from other funds of the Trustee except to the extent required
by law.
(b) The Company shall pay and shall indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against Government
Obligations deposited pursuant to Section 401 or Section 1011 or
pursuant to a supplemental indenture entered into pursuant to Section
901(i) or the interest and principal received in respect of such
obligations other than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time to
time upon Company Request any Government Obligations or money held by it
as provided in Section 401 or Section 1011 or in any supplemental
indenture entered into pursuant to Section 901(i) which, as expressed in
a Certificate of a Firm of Independent Public Accountants delivered to
the Trustee, are then in excess of the amount thereof which then would
have been required to be deposited for the purpose for which such
obligations or money were deposited or received.
-37-
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 pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) default in the payment of any interest or Additional Amounts
payable in respect of any Security of that series or any coupon
appertaining thereto, when such interest or Additional Amounts become
due and payable, and continuance of such default for a period of 30
days; or
(b) default in the payment of the principal of and any premium
on any Security of that series when it becomes due and payable at its
Maturity; or
(c) default in the deposit of any sinking fund payment, when and
as due by the terms of a Security of that series; or
(d) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture or the Securities of that
series (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 been expressly included in this Indenture solely for the
benefit of a 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 United States 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
(e) an event of default, as defined in any mortgage, indenture
or instrument under which there may be issued, or by which there may be
secured or evidenced, any Indebtedness for money borrowed of the Company
(including a default under this Indenture with respect to Securities of
any series other than that series), whether such Indebtedness now exists
or shall hereafter be created, shall happen and shall result in a
principal amount in excess of $25,000,000 of Indebtedness becoming or
being declared due and payable prior to the date on which it would
otherwise have become due and payable, and such acceleration shall not
have been rescinded or annulled, or
-38-
such Indebtedness shall not have been discharged, within a period of 10
days after there has been given, by registered or certified United
States 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
event of default and requiring the Company to cause such acceleration to
be rescinded or annulled or to cause such Indebtedness to be discharged
and stating that such notice is a "Notice of Default" hereunder; or
(f) a court having jurisdiction in the premises shall have
entered a decree or order for relief in respect of the Company in an
involuntary proceeding under any applicable United States bankruptcy,
insolvency, reorganization or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or other similar official) of the Company or of
all or any substantial part of its property, or ordering the winding-up
or liquidation of its affairs, and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(g) the Company shall have commenced a voluntary proceeding under
any applicable United States bankruptcy, insolvency, reorganization or
other similar law now or hereafter in effect, or shall have consented to
the entry of an order for relief in an involuntary case under any such
law, or shall have consented to the appointment of or taking possession
by a receiver, liquidator, assignee, trustee, custodian, sequestrator
(or other similar official) of the Company or of all or any substantial
part of its property, or shall have made an assignment for the benefit
of creditors; or
(h) the Company shall have failed generally to pay its debts as
they become due or shall have taken any corporate action in furtherance
of any of the matters referred to in subsection (g) above; or
(i) 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 (other than an Event of Default
specified in Section 5.01 (f) or (g)), then, and 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 (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by the Holders), and upon any such declaration such principal amount (or such
specified amount) shall become
-39-
immediately due and payable. If an Event of Default specified in Section 5.01
(f) or (g) with respect to Securities of any series at the time Outstanding
occurs and is continuing, then, and in every such case, the principal amount
(or, if any of the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified in the terms thereof) of all of the Securities of that series shall
become and be immediately due and payable without any declaration or other
action on the part of the Trustee or any Holder.
At any time after such acceleration with respect to Securities of
any series 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
acceleration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum of
money sufficient to pay
(1) all overdue installments of any interest on and
Additional Amounts payable in respect of all Securities of that
series and any coupons appertaining thereto,
(2) the principal of and any premium on any Securities of
that series which have become due otherwise than by reason of
such acceleration and interest thereon and Additional Amounts
with respect thereto at the rate or rates borne by or provided
for in such Securities,
(3) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest and Additional
Amounts at the rate or rates borne by or provided for in such
Securities, and
(4) 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
(b) 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 has become due solely by reason of such 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.
-40-
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(a) default is made in the payment of any installment of interest
or any Additional Amounts payable in respect of any Security or any
coupon appertaining thereto when such interest or Additional Amounts
shall have become due and payable and such default continues for a
period of 30 days, or
(b) default is made in the payment of the principal of or any
premium on any Security at its Maturity,
the Company shall, upon demand of the Trustee, pay to it, for the benefit of the
Holders of all Securities which are of the same series as such Security and any
coupons appertaining thereto, the whole amount of money then due and payable
with respect to such Securities and coupons for principal, premium, interest and
Additional Amounts and, to the extent that payment of such interest shall be
legally enforceable, interest upon any overdue principal (and premium, if any)
and upon any overdue installments of interest and Additional Amounts, at the
rate or rates borne by or provided for in such series of Securities, and, in
addition thereto, such further amount of money 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.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such Securities
and coupons and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon such Securities and coupons, wherever situated.
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 and any related coupons 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 such Securities or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities and any coupons appertaining thereto or the property of the Company
or of such other obligor or
-41-
their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of any overdue principal, premium, interest or
Additional Amounts) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(a) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of any series, of
principal, premium, interest and Additional Amounts owing and unpaid in
respect of the Securities and any coupons appertaining thereto and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders of Securities and
coupons allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable
or deliverable on any such claim 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 of Securities and coupons 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 of Securities and coupons, to pay to the Trustee any
amount due to 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.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder of a
Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or coupon in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES OR COUPONS.
All rights of action and claims under this Indenture or any of
the Securities or coupons may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or coupons or the production thereof in
any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery or 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 and
coupons in respect of which such judgment has been recovered.
-42-
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,
premium, interest or Additional Amounts, upon presentation of the Securities or
coupons, or both, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and any coupons for principal and any premium, interest
and Additional Amounts 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 aggregate amounts due and payable on such
Securities and coupons for principal and any premium, interest and
Additional Amounts, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series or any related coupons
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
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(b) 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;
(c) 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;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) 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;
-43-
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 or any Security 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
AND ANY PREMIUM, INTEREST AND ADDITIONAL AMOUNTS.
Notwithstanding any other provision in this Indenture, the Holder
of any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Sections 305 and 307) any interest on, and any Additional Amounts in
respect of, such Security, or payment of such coupon, as the case may be, on the
respective Stated Maturity or Maturities thereof expressed in such Security or
coupon (or, in the case of redemption, on the Redemption Date or, in the case of
repayment at the option of such Holder, on the date such repayment is due) 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 of a Security or coupon 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 the Company, the Trustee and the Holders of Securities or coupons
shall, subject to any determination in such proceeding, be restored severally
and respectively to their former positions hereunder, and thereafter all rights
and remedies of the Trustee and such 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 or coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or coupons 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.
-44-
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Security or coupon to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders of Securities or coupons
may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders of Securities or coupons, as the case may be.
SECTION 512. CONTROL BY HOLDERS OF SECURITIES.
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
(a) such direction shall not be in conflict with any rule of
law or with this Indenture or with the Securities of such series;
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(c) such direction is not unduly prejudicial to the rights of
other Holders of Securities of such series not joining in such action.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of 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 and any related coupons waive any past default hereunder with
respect to the Securities of such series and its consequences, except a default
(a) in the payment of the principal of or any premium or
interest on, or Additional Amounts in respect of, any Security of such
series; or
(b) 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.
-45-
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any
Security or coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant (other than the Company and the Trustee) in such suit of an undertaking
to pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or to any suit instituted by any Holder of
a Security or coupon for the enforcement of the payment of the principal of or
any premium or interest on, or Additional Amounts in respect of, any Security,
or the payment of any coupon, on or after the Stated Maturity or Maturities
expressed in such Security or coupon (or, in the case of redemption, on or after
the Redemption Date or, in the case of repayment at the option of a Holder, on
or after the date such repayment is due) or interest on any overdue principal of
any Security.
SECTION 515. WAIVER OF 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 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.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties, and
only such duties, as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
-46-
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such
certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own wilful misconduct, EXCEPT that
(1) this subsection shall not be construed to limit the
effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series; and
(4) 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.
-47-
(d) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of
or affording protection to the Trustee shall be subject to the
provisions of this Section.
SECTION 602. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit, in the
manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
notice of such default hereunder known to the Trustee, unless such default shall
have been cured or waived; PROVIDED, HOWEVER, that, except in the case of a
default in the payment of the principal of or any premium or interest on, or
Additional Amounts in respect of, any Security of such series or in the payment
of any sinking fund installment with respect to Securities of such series, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders of Securities and
coupons of such series; and PROVIDED, FURTHER, that in the case of any default
of the character specified in Section 501(d) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to Securities of such series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
(other than delivery of any Security to the Trustee for authentication
and delivery pursuant to Section 303 which shall be sufficiently
evidenced as provided therein) and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
-48-
(d) 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;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by or pursuant to this Indenture at
the request or direction of any of the Holders of Securities of any
series or any related coupons pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine
to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by
agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due
care by it hereunder.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Securities (except the
Trustee's certificate of authentication) and in any coupons 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 or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility and Qualification on Form T-1 supplied to the Company
are true and accurate, subject to the qualifications set forth therein. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Paying Agent, Security Registrar, Authenticating
Agent or any other agent of the Company, in its individual or any other
capacity, may become the
-49-
owner or pledgee of Securities and coupons and, subject to the provisions of the
Trust Indenture Act, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Paying Agent, Security Registrar,
Authenticating Agent or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(a) 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);
(b) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except to the
extent any such expense, disbursement or advance may be attributable to
the Trustee's gross negligence or willful misconduct; and
(c) to indemnify each of the Trustee and its agents for, and to
hold each of them harmless against, any loss, liability or expense
arising out of or in connection with the acceptance or administration of
the trust or trusts hereunder or the performance of its duties
hereunder, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder, except to the extent any such
loss, liability or expense may be attributable to its gross negligence
or willful misconduct.
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 or any premium or interest on, or
Additional Amounts in respect of, particular Securities or any coupons
appertaining thereto. "Trustee" for purposes of this Section 607 includes any
predecessor Trustee, but negligence or bad faith of any Trustee shall not be
attributed to any other Trustee.
-50-
SECTION 608. DISQUALIFICATIONS; CONFLICTING INTERESTS.
(a) If the Trustee has or shall acquire any conflicting interest,
within the meaning of the Trust Indenture Act, it shall, within 90 days
after ascertaining that it has such conflicting interest, either
eliminate such conflicting 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.
(b) The following indenture shall be deemed to be specifically
described herein for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act: Indenture dated
as of December 1, 1985 between the Company and the Trustee.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation or other person permitted by the Trust Indenture Act to act as
Trustee under an indenture qualified under the Trust Indenture Act and that has
a combined capital and surplus of at least $50,000,000. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee under
Section 611.
(b) The Trustee may resign at any time 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.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered
to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608
after written request therefor by the Company or by any Holder
-51-
of a Security 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 of a Security, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company, by or pursuant to a Board
Resolution, may remove such Trustee with respect to all Securities as to
which it is Trustee or (ii) subject to Section 514, any Holder of a
Security who has been a bona fide Holder of a Security of any series for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal
of such Trustee with respect to all Securities of such series and the
appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any
cause, with respect to the Securities of one or more series, the
Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or
those series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee with respect
to the Securities of any particular series) and shall comply with the
applicable requirements of Section 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 of Securities and
accepted appointment in the manner required by Section 611, any Holder
of a Security who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for
-52-
the appointment of a successor Trustee with respect to the Securities of
such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities
of any series 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 and New
York Facility.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to
the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts and duties hereunder of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts hereunder 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
for in Section 607.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to
the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest
in, each successor Trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, (2)
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 as co-trustees of the same
trust, that each such Trustee shall be
-53-
trustee of a trust or trusts hereunder separate and apart from any trust
or trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any notice given to, or received by, or
any act or failure to act on the part of any other Trustee hereunder;
and upon the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to
the extent provided therein, such retiring Trustee shall with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture other than as
hereinafter expressly set forth, and each such successor Trustee without
any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company or any
successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee, to the extent contemplated by such
supplemental indenture, the property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and
trusts referred to in subsection (a) or (b) of this Section, as the case
may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
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 of 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.
-54-
SECTION 613. 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 or 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. Any such appointment
shall be evidenced by an instrument in writing signed by a Responsible Officer
of the Trustee, a copy of which instrument shall be promptly furnished to the
Company. 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 bank or trust company or corporation organized and doing business and
in good standing under the laws of the United States, 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 $5,000,000 and subject to
supervision or examination by Federal or State authorities. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. In
case at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such 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 of resignation to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice of
termination 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 (i) mail written notice
of such appointment by United States first-class mail, postage prepaid, to all
Holders of Registered Securities, if any, of the series with respect to which
such Authenticating Agent shall serve, as their names and addresses appear in
the Security
-55-
Register, and (ii) if Securities of the series are issued as Bearer Securities,
publish notice of such appointment at least once in an Authorized Newspaper in
the place where such successor Authenticating Agent has its principal office if
such office is located outside the United States. 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 herein. 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, including reimbursement of its reasonable
expenses for its services under this Section.
The provisions of Sections 308, 604 and 605 shall be applicable
to each Authenticating Agent.
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 or in lieu of the Trustee's certificate of
authentication, an alternative certificate of authentication substantially in
the following form:
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
________________________
AS TRUSTEE
By
________________________
AS AUTHENTICATING AGENT
By
________________________
AUTHORIZED OFFICER
If all of the Securities of any series may not be originally
issued at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of Payment
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested in writing (which writing need
not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) by the Company, shall appoint in accordance with this Section 613 an
Authenticating Agent having an office in a Place of Payment designated by the
Company with respect to such series of Securities.
-56-
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS OF REGISTERED SECURITIES.
The Company shall furnish or cause to be furnished to the
Trustee:
(a) semi-annually, not later than fifteen days after the Regular
Record Date for interest for each series of Securities, a list, in such
form as the Trustee may reasonably require, of the names and addresses
of the Holders of Registered Securities of such series as of such
Regular Record Date, or if there is no Regular Record Date for interest
for such series of Securities, semi-annually, not later than May 15 and
November 15 in each year, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished,
PROVIDED, HOWEVER, that so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished for Securities for which the Trustee
acts as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
HOLDERS.
The Trustee shall comply with the obligations imposed upon it
pursuant to Section 312 of the Trust Indenture Act.
Every Holder of Securities or coupons, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any Authenticating Agent nor any Paying Agent nor any Security
Registrar shall be held accountable by reason of the disclosure of any
information as to the names and addresses of the Holders of Securities in
accordance with Section 312(c) of the Trust Indenture Act, regardless of the
source from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a request made
under Section 312(b) of the Trust Indenture Act.
SECTION 703. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the
first May 15 after the first issuance of Securities pursuant to this
Indenture, if required by Section 313(a) of the Trust Indenture Act, the
Trustee shall transmit a brief report dated as of such May 15 with
respect to any of the
-57-
events specified in said Section 313(a) which may have occurred since
the later of the immediately preceding May 15 and the date of this
Indenture.
(b) The Trustee shall transmit the reports required by Section
313(b) of the Trust Indenture Act at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and (d) of the
Trust Indenture Act.
SECTION 704. REPORTS BY COMPANY.
The Company, pursuant to Section 314(a) of the Trust Indenture
Act, shall:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents, and other reports (or copies
of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports pursuant to either of
said Sections, then it shall file with the Trustee and the Commission,
in accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Securities Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(c) transmit to the Holders of Securities within 30 days after
the filing thereof with the Trustee, in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act, such summaries of
any information, documents and reports required to be filed by the
Company pursuant to subsections (a) and (b) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
-58-
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 801. CONSOLIDATIONS AND MERGERS OF COMPANY AND SALES AND
CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS.
The Company may consolidate with, or sell or convey all or
substantially all of its assets to, or merge with or into any other corporation,
PROVIDED that in any such case, (i) either the Company shall be the continuing
or surviving corporation, or the successor corporation shall be a corporation
organized and existing under the laws of the United States of America or a State
thereof and such successor corporation shall expressly assume the due and
punctual payment of the principal of and any premium and interest on, and any
Additional Amounts payable pursuant to Section 1004 in respect of, all the
Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Company by supplemental indenture satisfactory to the Trustee,
executed and delivered to the Trustee by such corporation and (ii) the Company
or such successor corporation, as the case may be, shall not, immediately after
such merger or consolidation, or such sale or conveyance, be in default in the
performance of any such covenant or condition and shall not immediately
thereafter have outstanding (or otherwise be liable for) any Indebtedness
secured by a Mortgage not expressly permitted by the provisions of Section 1009
or shall have secured the Securities Outstanding hereunder equally and ratably
with (or prior to) any Indebtedness secured by any Mortgage not so permitted.
SECTION 802. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION.
In case of any such consolidation, merger, sale or conveyance,
and upon any such assumption by the successor corporation, such successor
corporation shall succeed to and be substituted for the Company, with the same
effect as if it had been named herein as the party of the first part, and the
predecessor corporation, except in the event of a conveyance by way of lease,
shall be relieved of any further obligation under this Indenture and the
Securities and any coupons appertaining thereto. Such successor corporation
thereupon may cause to be signed, and may issue either in its own name or in the
name of the Company, any or all of the Securities and coupons issuable hereunder
which theretofore shall not have been signed by the Company and delivered to the
Trustee, and, upon the order of such successor corporation, instead of the
Company, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities and coupons which previously shall have been signed and delivered by
the officers of the Company to the Trustee for authentication, and any
Securities or coupons which such successor corporation thereafter shall cause to
be signed and delivered to the Trustee for that purpose. All the Securities and
coupons so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities and coupons theretofore or thereafter
issued in accordance with the terms of this Indenture as though all of such
Securities and coupons had been issued at the date of the execution hereof.
-59-
In case of any such consolidation, merger, sale or conveyance,
such changes in phraseology and form (but not in substance) may be made in the
Securities and coupons thereafter to be issued as may be appropriate.
SECTION 803. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL.
The Trustee, subject to the provisions of Sections 601 and 603,
may receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale or conveyance, and any such
assumption, complies with the provisions of this Article.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities or coupons, the
Company, when authorized by or pursuant to 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:
(a) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Securities contained; or
(b) 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
(c) to add any additional Events of Default with respect to all
or any series of Securities; or
(d) to add to or change any of the provisions of this Indenture
to provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal (or
premium, if any) or any interest on or Additional Amounts with respect
to Registered Securities or Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities or to
permit the issuance of Securities in uncertificated form, PROVIDED that
any such action shall not adversely affect the interests of the Holders
of Securities of any series or any related coupons in any material
respect; or
-60-
(e) to change or eliminate any of the provisions of this
Indenture, PROVIDED that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(f) to secure the Securities pursuant to the requirements of
Sections 801 or 1009, or otherwise; or
(g) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301; or
(h) 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(b); or
(i) to provide that the Company shall be deemed to have paid and
discharged the entire indebtedness on all the Outstanding Securities of
any series on the 91st day after the date of the deposit referred to in
paragraph (4) hereof, and that the provisions of this Indenture, as it
relates to such Outstanding Securities (except as to any right to
receive Additional Amounts, as provided in Section 1004), shall no
longer be in effect (and the Trustee, at the expense of the Company,
shall at Company Request, execute proper instruments acknowledging the
same), except as to:
(1) the rights of Holders of Securities to receive, from
the trust funds described in paragraph (4) hereof, (i) payment of
the principal of (and premium, if any) and any installment of
principal of (and premium, if any) and/or interest on the
Outstanding Securities of that series on the Stated Maturity of
such principal or installment of principal and/or interest and
(ii) any mandatory sinking fund payments or analogous payments or
any Additional Amounts applicable to Securities of such series on
the day on which such payments are due and payable in accordance
with the terms of this Indenture and of such Securities;
(2) the Company's obligations with respect to such
Securities under Sections 305, 306, 402, 1002 and 1003, and
(3) the rights, powers, trusts, duties and immunities
of the Trustee hereunder;
-61-
provided that the following conditions shall have been satisfied:
(4) with reference to such provision, the Company has
irrevocably deposited or caused to be irrevocably deposited
(except as provided in Section 402) with the Trustee, as trust
funds and/or obligations in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders
of the Securities of that series, (i) money in an amount, or (ii)
Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms,
without consideration of any reinvestment thereof, will provide
not later than one day before the due date of any payment
referred to in clause (A) or (B) of this paragraph (4) money in
an amount or (iii) a combination thereof, sufficient, as
expressed in a Certificate of a Firm of Independent Public
Accountants delivered to the Trustee, to pay and discharge (A)
the principal of (and premium, if any) and any installment of
principal of (and premium, if any) and/or interest on the
Outstanding Securities of that series on the Stated Maturity of
such principal or installment of principal and/or interest and
(B) any mandatory sinking fund payments or analogous payments or
any Additional Amounts applicable to Securities of such series on
the day on which such payments are due and payable in accordance
with the terms of this Indenture and of such Securities;
(5) such deposit shall not cause the Trustee with respect
to the Securities of that series to have a conflicting interest
for purposes of the Trust Indenture Act with respect to the
Securities of any series;
(6) such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Company is a party or by
which it is bound;
(7) such provision would not cause the Outstanding
Securities of such series then listed on the New York Stock
Exchange to be delisted as a result thereof;
(8) no Event of Default or event which with notice or
lapse of time or both would become an Event of Default with
respect to Securities of that series shall have occurred and be
continuing on the date of such deposit or during the period
ending on the 91st day after such date;
-62-
(9) the Company has delivered to the Trustee an Officers'
Certificate or an Opinion of Counsel to the effect that (i) the
Company has received from, or there has been published by, the
United States Internal Revenue Service a ruling, or (ii) since
the date of this Indenture there has been a change in the
applicable Federal income tax law, in either case, to the effect
that Holders of the Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result
of such deposit, defeasance and discharge and will be subject to
Federal income tax on the same amount and in the same manner and
at the same times, as would have been the case if such deposit,
defeasance and discharge had not occurred;
(10) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the defeasance
contemplated by such provision have been complied with; and
(11) such supplemental indenture shall contain a provision
substantially to the same effect as the last paragraph of Section
1011 but relating to the Securities to be discharged under the
terms of such supplemental indenture; or
(j) to add to, delete from or revise the conditions, limitations
and restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth; or
(k) 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 such action shall not
adversely affect the interests of the Holders of Securities of any
series or any related coupons 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 or pursuant to 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 and any related coupons under this
Indenture; PROVIDED, HOWEVER, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security affected thereby:
-63-
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security; or reduce the
principal amount thereof or the rate of interest thereon or any
Additional Amounts payable in respect thereof, or any premium payable
upon the redemption thereof or otherwise, or change any obligation of
the Company to pay Additional Amounts pursuant to Section 1004 (except
as contemplated by Section 801(i) and permitted by Section 901(a)), or
reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon acceleration of the Maturity
thereof pursuant to Section 502 or the amount thereof provable in
bankruptcy pursuant to Section 504, or adversely affect any right of
repayment at the option of the Holder of any Security, or change any
Place of Payment where, or the coin or currency in which, any Security
or any premium or the interest thereon or any Additional Amounts with
respect thereto 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, in the case of repayment at the option of the Holder, on or after
the date for repayment); or
(b) 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 reduce the requirements of Section 1404 for
quorum or voting; or
(c) modify any of the provisions of this Section, Section 513 or
Section 1010, except to increase the percentage in principal amount of
the Outstanding Securities of any series, the consent of whose Holders
is required for the actions specified herein or therein, 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 subsection shall not be
deemed to require the consent of any Holder of Securities or coupons
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 Section 901(h).
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.
-64-
It shall not be necessary for any Act of Holders of Securities or
coupons 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 modification 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 and of any coupons appertaining thereto shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
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 Board of Directors, 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 AND ANY PREMIUM, INTEREST AND
ADDITIONAL AMOUNTS.
-65-
The Company covenants and agrees for the benefit of the Holders
of Securities of each series that it will duly and punctually pay the principal
of and any premium and interest on, and any Additional Amounts payable in
respect of, the Securities of that series in accordance with the terms of such
series of Securities, any coupons appertaining thereto and this Indenture. Any
interest due on and any Additional Amounts payable in respect of Bearer
Securities on or before the Maturity thereof, other than Additional Amounts, if
any, payable as provided in Section 1004 in respect of principal of or any
premium on such a Security, shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are evidenced
thereby as they severally mature.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that series (but
not Bearer Securities, except as otherwise provided below, unless such Place of
Payment is located outside the United States) 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, and
the Company hereby initially appoints the Trustee at its Corporate Trust Office
as its agent to receive all such presentations, surrenders, notices and demands.
If Securities of a series are issuable as Bearer Securities, the Company shall
maintain, subject to any laws or regulations applicable thereto, an office or
agency in a Place of Payment for such series which is located outside the United
States where Securities of such series and any related coupons may be presented
and surrendered for payment (including payment of any Additional Amounts payable
on Securities of such series pursuant to Section 1004), where Securities of that
series may be surrendered for 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; PROVIDED, HOWEVER, that if the Securities of such series are listed
on The Stock Exchange of the United Kingdom and the Republic of Ireland or the
Luxembourg Stock Exchange or any other stock exchange located outside the United
States and such stock exchange shall so require, the Company shall maintain a
Paying Agent for the Securities of such series in London, Luxembourg or any
other required city located outside the United States, as the case may be, so
long as the Securities of such series are listed on such exchange. The Company
will give prompt written notice to the Trustee of the location, and any change
in the location, of each 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 or the New York
Facility of the Trustee, except that Bearer Securities of that series and any
related coupons may be presented and surrendered for payment (including payment
of any Additional Amounts payable on Bearer Securities of that series pursuant
to Section 1004) at the place specified for the purpose pursuant to Section 301.
Except as otherwise provided in the form of Bearer Security of
any particular series pursuant to the provisions of this Indenture, no payment
of principal, or any premium
-66-
or interest on or Additional Amounts in respect of Bearer Securities shall be
made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; PROVIDED, HOWEVER, that
payment of principal of and any premium or interest (including Additional
Amounts payable in respect thereof) on any Bearer Security may be made in
Dollars at the Corporate Trust Office of the Trustee if (but only if) payment in
Dollars of the full amount of such principal, premium, interest or Additional
Amounts, as the case may be, at all offices or agencies outside the United
States maintained for such purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
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 of such purposes, and may from time to
time rescind such designations; PROVIDED, HOWEVER, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in accordance with the requirements set forth above for
Securities of any series for such purposes. The Company shall 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. Unless otherwise set
forth in a Board Resolution or any indenture supplemental hereto with respect to
a series of Securities issuable as Registered Securities, the Company hereby
designates as the Place of Payment for each series of Securities issuable as
Registered Securities the Borough of Manhattan, The City of New York, and
initially appoints the Trustee at its Corporate Trust Office as Paying Agent and
as its agent to receive all such presentations, surrenders, notices and demands.
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 shall, on or before each due date of the
principal of and any premium or interest on or Additional Amounts with respect
to 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, interest or Additional Amounts so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided, and
shall 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 shall, on or prior to each due date of the principal of
and any premium or interest on or any Additional Amounts with respect to any
Securities of that series, deposit with a Paying Agent a sum sufficient to pay
the principal and any premium, interest or Additional Amounts so becoming due,
such sum to be held in trust for the benefit of the Persons entitled to such
principal, premium, interest or Additional Amounts, and (unless such Paying
Agent is the Trustee) the Company shall promptly notify the Trustee of its
action or failure so to act.
-67-
The Company shall 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:
(a) hold all sums held by it for the payment of the principal of
and any premium or interest on or Additional Amounts with respect to
Securities of that series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as provided in or pursuant to this Indenture;
(b) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal of, any premium or interest on or Additional
Amounts with respect to Securities of that series; and
(c) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
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.
Except as otherwise specified as contemplated by Section 301 for
Securities of any particular series, 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 and any premium or interest on or Additional Amounts in respect of
any Security of any series and remaining unclaimed for one year after such
principal and any premium or interest or Additional Amounts has become due and
payable shall be paid to the Company upon Company Request along with interest
that has been accumulated thereon or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security or any coupon
appertaining thereto shall thereafter, as an unsecured general creditor, look
only to the Company for payment of such principal, premium or interest, without
interest thereon, 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 an Authorized Newspaper in
each Place of Payment for such series or to be mailed to Holders of Registered
Securities of such series, or both, 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 or
-68-
mailing, any unclaimed balance of such money then remaining will be repaid to
the Company.
SECTION 1004. ADDITIONAL AMOUNTS.
If the Securities of a series provide for the payment of
Additional Amounts, the Company shall pay to the Holder of any Security of such
series or any coupon appertaining thereto Additional Amounts as provided
therein. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of or any premium or interest on, or in respect of, any
Security of any series or payment of any related coupon or the net proceeds
received on the sale or exchange of any Security of any series, such mention
shall be deemed to include mention of the payment of Additional Amounts provided
for by the terms of such series pursuant hereto to the extent that, in such
context, Additional Amounts are, were or would be payable in respect thereof
pursuant to such terms and express mention of the payment of Additional Amounts
(if applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not
made.
Except as otherwise provided in or pursuant to this Indenture, if
the Securities of a series provide for the payment of Additional Amounts, at
least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series shall not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set forth in the below-mentioned Officers' Certificate, the
Company will furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and any premium or interest on the Securities of that
series shall be made to Holders of Securities of that series or any related
coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or coupons and the Company shall
pay to the Trustee or such Paying Agent the Additional Amounts required by the
terms of such Securities. The Company covenants to indemnify the Trustee and any
Paying Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them in
reliance on any Officers' Certificate furnished pursuant to this Section.
SECTION 1005. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) 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 (ii)
all lawful claims for labor, materials and supplies
-69-
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 1006. MAINTENANCE OF PROPERTIES.
The Company shall 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 shall 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 and 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 of Securities or coupons.
SECTION 1007. STATEMENT AS TO COMPLIANCE; NOTICE OF CERTAIN
DEFAULTS.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, a written statement, which need not
comply with Section 102, signed by the principal executive officer, the
principal financial officer or the principal accounting officer of the
Company, as to his or her knowledge of the Company's compliance with all
conditions and covenants under this Indenture. For purposes of this
Section 1007, such compliance shall be determined without regard to any
period of grace or requirement of notice under this Indenture.
(b) The Company shall deliver to the Trustee, within five days
after the occurrence thereof, written notice of any event which after
notice or lapse of time or both would become an Event of Default
pursuant to Section 501.
SECTION 1008. CORPORATE EXISTENCE.
Subject to Article Eight, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and the rights (charter and statutory) and franchises of the
Company and any Subsidiary; PROVIDED, HOWEVER, that the Company shall not be
required to preserve any such right or franchise if the Company shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company or any Subsidiary and that the loss thereof is not
disadvantageous in any material respect to the Holders of Securities or coupons.
-70-
SECTION 1009. LIMITATION ON LIENS.
(a) Except as hereinafter in this Section expressly permitted, so
long as any of the Securities or coupons appertaining thereto shall
remain Outstanding, the Company shall not at any time, directly or
indirectly, create, assume or suffer to exist, and shall not cause,
suffer or permit any Subsidiary to create, assume or suffer to exist,
any Mortgage of or upon any of its or their properties or assets, real
or personal, whether owned at the date of this Indenture or thereafter
acquired, or of or upon any income or profit therefrom, without making
effective provision, and the Company covenants that in any such case it
will make or cause to be made effective provision, whereby the
Securities then Outstanding and any coupons appertaining thereto shall
be secured by such Mortgage equally and ratably with or prior to any and
all other obligations and indebtedness to be secured thereby, so long as
any such other obligations and indebtedness shall be so secured.
(b) Nothing in this Section shall be construed to prevent the
Company or any Subsidiary from creating, assuming or suffering to exist,
and the Company or any Subsidiary is hereby expressly permitted to
create, assume or suffer to exist, without securing the Securities then
Outstanding and any coupons appertaining thereto as hereinabove
provided, any Mortgage of the following character:
(1) any Mortgage on any properties or assets of the
Company or any Subsidiary existing on the date hereof;
(2) any Mortgage on any properties or assets of the
Company or any Subsidiary, in addition to those otherwise
permitted by this subsection (b) of this Section, securing
Indebtedness of the Company or any Subsidiary and refundings or
extensions of any such Mortgage and the Indebtedness secured
thereby for amounts not exceeding the principal amount of the
Indebtedness so refunded or extended at the time of the refunding
or extension thereof and covering only the same property
theretofore securing the same; PROVIDED THAT at the time such
Indebtedness was initially incurred, the aggregate amount of
secured Indebtedness permitted by this paragraph (2), after
giving effect to such incurrence, does not exceed 10% of
Consolidated Net Worth;
(3) any Mortgage on any property or assets of any
Subsidiary to secure Indebtedness owing by it to the Company
or to a Wholly-owned Subsidiary;
(4) any Mortgage on any property or assets of any
Subsidiary to secure, in the ordinary course of business, its
-71-
Indebtedness, if as a matter of practice, prior to the time it
became a Subsidiary, it had borrowed on the basis of secured
loans or had customarily deposited collateral to secure any or
all of its obligations;
(5) any purchase money Mortgage on property, real or
personal, acquired or constructed by the Company or any
Subsidiary after October 1, 1994, to secure the purchase price of
such property (or to secure Indebtedness incurred for the purpose
of financing the acquisition or construction of any such property
to be subject to such Mortgage), or Mortgages existing on any
such property at the time of acquisition, whether or not assumed,
or any Mortgage existing on any property of any corporation at
the time it becomes a Subsidiary, or any Mortgage with respect to
any property hereafter acquired; PROVIDED, HOWEVER, that the
aggregate principal amount of the Indebtedness secured by all
such Mortgages on a particular parcel of property shall not
exceed 75% of the cost of such property, including the
improvements thereon, to the Company or any such Subsidiary, and
PROVIDED, FURTHER, that any such Mortgage does not spread to
other property owned prior to such acquisition or construction or
to property thereafter acquired or constructed other than
additions to such property;
(6) refundings or extensions of any Mortgage permitted by
this subsection (b) of this Section (other than pursuant to
paragraph (2) hereof) for amounts not exceeding the principal
amount of the Indebtedness so refunded or extended at the time of
the refunding or extension thereof, and covering only the same
property theretofore securing the same;
(7) deposits, liens or pledges to enable the Company or
any Subsidiary to exercise any privilege or license, or to secure
payments of workmen's compensation, unemployment insurance, old
age pensions or other social security, or to secure the
performance of bids, tenders, contracts or leases to which the
Company or any Subsidiary is a party, or to secure public or
statutory obligations of the Company or any Subsidiary, or to
secure surety, stay or appeal bonds to which the Company or any
Subsidiary is a party; or other similar deposits, liens or
pledges made in the ordinary course of business;
(8) mechanics', workmen's, repairmen's, materialmen's, or
carriers' liens; or other similar liens arising in the ordinary
course of business; or deposits or pledges to obtain the release
of any such liens;
-72-
(9) liens arising out of judgments or awards against the
Company or any Subsidiary with respect to which the Company or
such Subsidiary shall in good faith be prosecuting an appeal or
proceedings for review; or liens incurred by the Company or any
Subsidiary for the purpose of obtaining a stay or discharge in
the course of any legal proceeding to which the Company or such
Subsidiary is a party;
(10) liens for taxes not yet subject to penalties for
non-payment or contested, or minor survey exceptions, or minor
encumbrances, easements or reservations of, or rights of others
for, rights of way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other
restrictions as to the use of real properties, which
encumbrances, easements, reservations, rights and restrictions do
not in the aggregate materially detract from the value of said
properties or materially impair their use in the operation of the
business of the Company or of the Subsidiary owning the same;
(11) other liens, charges and encumbrances incidental to
the conduct of its business or the ownership of its property and
assets which were not incurred in connection with the borrowing
of money or the obtaining of advances or credit, and which do not
in the aggregate materially detract from the value of its
property and assets or materially impair the use thereof in the
operation of its business; and
(12) any Mortgage created by the Company or any Subsidiary
in connection with a transaction intended by the Company or such
Subsidiary to be one or more sales of properties or assets of the
Company or such Subsidiary; provided that such Mortgage shall
only apply to the properties or assets involved in such sale or
sales, the income from such properties or assets and/or the
proceeds of such properties or assets.
(c) If at any time the Company or any Subsidiary shall create or
assume any Mortgage not permitted by subsection (b) of this Section, to
which the covenant in subsection (a) of this Section is applicable, the
Company shall promptly deliver to the Trustee
(1) an Officers' Certificate stating that the covenant of
the Company contained in subsection (a) of this Section has been
complied with; and
-73-
(2) an Opinion of Counsel to the effect that such covenant
has been complied with, and that any instruments executed by the
Company in the performance of such covenant comply with the
requirements of such covenant.
(d) In the event that the Company shall hereafter secure the
Securities and any coupons appertaining thereto equally and ratably with
(or prior to) any other obligation or indebtedness pursuant to the
provisions of this Section, the Trustee is hereby authorized to enter
into an indenture or agreement supplemental hereto and to take such
action, if any, as it may deem advisable to enable the Trustee to
enforce effectively the rights of the Holders of the Securities and any
coupons appertaining thereto so secured equally and ratably with (or
prior to) such other obligation or indebtedness.
SECTION 1010. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with
any covenant or condition set forth in Sections 1005, 1006, 1008 and 1009, with
respect to the Securities of any series if before or after the time for such
compliance the Holders of at least a majority 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
covenant or condition, but no such waiver shall extend to or affect such
covenant 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 covenant or condition shall remain in full
force and effect.
SECTION 1011. DEFEASANCE OF CERTAIN OBLIGATIONS.
If this Section 1011 is specified, as contemplated by Section 301, to be
applicable to Securities of any series, the Company may omit to comply with any
term, provision or condition set forth in Section 1009, and any additional
covenants not included in this Indenture specified as applicable to the
Securities of such series as contemplated by Section 301, if
(a) with reference to this Section 1011, the Company has
irrevocably deposited or caused to be irrevocably deposited (except as
provided in Section 402) with the Trustee, as trust funds and/or
obligations in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of
that series, (i) money in an amount, or (ii) Government Obligations
which through the payment of interest and principal in respect thereof
in accordance with their terms, without consideration of any
reinvestment thereof, will provide not later than one day before the due
date of any payment referred to in clause (A) or (B) of this subsection
(a) money in an amount, or (iii) a combination thereof, sufficient, as
expressed in a Certificate of a Firm of Independent Public Accountants
delivered to the Trustee, to pay and discharge (A) the principal of (and
premium, if any) and
-74-
any installment of principal of (and premium, if any) and/or interest on
the Outstanding Securities of that series on the Stated Maturity of such
principal or installment of principal and/or interest and (B) any
mandatory sinking fund payments or analogous payments or any Additional
Amounts applicable to Securities of such series on the day on which such
payments are due and payable in accordance with the terms of this
Indenture and of such Securities;
(b) such deposit shall not cause the Trustee with respect to the
Securities of that series to have a conflicting interest for purposes of
the Trust Indenture Act with respect to the Securities of any series;
(c) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(d) such deposit would not cause the Outstanding Securities of
such series then listed on the New York Stock Exchange to be delisted as
a result thereof;
(e) no Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to Securities
of that series shall have occurred and be continuing on the date of such
deposit;
(f) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that Holders of the Securities of such series will
not recognize income, gain or loss for Federal income tax purposes as a
result of such deposit and defeasance of certain obligations and will be
subject to Federal income tax on the same amount and in the same manner
and at the same times, as would have been the case if such deposit and
defeasance had not occurred; and
(g) 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 defeasance contemplated by
this Section have been complied with.
In the event that, subsequent to the date a defeasance is effected
pursuant to this Section 1011 with respect to Securities of any series,
Additional Amounts in excess of those established as of the date such defeasance
is effected become payable in respect of such Securities, in order to preserve
the benefits of the defeasance established hereunder with respect to such
series, the Company shall irrevocably deposit or cause to be irrevocably
deposited in accordance with the provisions of subsection (a) of this Section
1011, within ten Business Days prior to the earlier to occur of (i) one year
after the existence of such excess Additional Amounts is established and (ii)
the date the first payment in respect of any portion of such excess Additional
Amounts becomes due, such additional funds as are necessary to satisfy the
provisions of such subsection (a) as if a defeasance were being
-75-
effected as of the date of such subsequent deposit. For purposes of this
paragraph, the existence of excess Additional Amounts shall be deemed to have
been established as of the date the governmental authority imposing the tax,
assessment or other governmental charge resulting in the Additional Amounts
first publishes the legislation, regulation or other enactment adopting such
tax, assessment or other governmental charge. Failure to comply with the
requirements of this paragraph shall result in the termination of the benefits
of the defeasance established by this Section 1011 with respect to the
Securities of such series.
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 Securities of any series)
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 or pursuant to a Board Resolution. In case of any redemption at the
election of the Company of Securities of any series, 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 and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities (i) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, or (ii) pursuant to an election of
the Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction or condition.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series with the same terms
are to be redeemed, 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 portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Registered Securities of such series of a denomination
larger than the minimum authorized denomination for Securities of that series.
-76-
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
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 Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in
Section 106, not less than 30 nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified in the Securities to be redeemed, to
each Holder of Securities to be redeemed. Failure to give such notice by mailing
in the manner therein provided to the Holder of any Registered Security
designated for redemption as a whole or in part, or any defect in the notice to
any such Holder, shall not affect the validity of the proceedings for the
redemption of any other such Security or portion thereof.
Any notice that is given in the manner provided in Section 106
shall be conclusively presumed to have been duly given, whether or not the
Holder of Securities receives the notice.
All notices of redemption shall state, to the extent applicable:
(a) the Redemption Date;
(b) the Redemption Price and accrued interest, if any;
(c) if less than all Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amount) of the particular Security or Securities to be
redeemed;
(d) in case any Registered Security is to be redeemed in part
only, the notice which relates to such Security shall state that on and
after the Redemption Date, upon surrender of such Security, the Holder
of such Security will receive, without charge, a new Registered Security
or Registered Securities of authorized denominations for the principal
amount thereof remaining unredeemed;
(e) that on the Redemption Date the Redemption Price and any
accrued interest and Additional Amounts shall become due and payable
upon each such Security or portion thereof to be redeemed and, if
applicable, that interest thereon shall cease to accrue on and after
said date;
-77-
(f) the place or places where such Securities, together in the
case of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of
the Redemption Price and any accrued interest and Additional Amounts
pertaining thereto;
(g) that the redemption is for a sinking fund, if such is the
case;
(h) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee and any Paying Agent is
furnished;
(i) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject
to redemption on the Redemption Date pursuant to Section 305 or
otherwise, the last date, as determined by the Company, on which such
exchanges may be made; and
(j) the CUSIP number or the Euroclear or the Cedel reference
numbers (or any other numbers used by a Depository to identify such
Securities), if any, of the Securities to be redeemed.
A notice of redemption published as contemplated by Section 106
need not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
On or 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 except in the case of a sinking fund payment under Article Twelve,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay on the Redemption Date the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date) any accrued interest on
and Additional Amounts in respect of, all the Securities or portions thereof
which are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
If notice of redemption has been given as provided in Section
1104, the Securities so to be redeemed shall, on the Redemption Date, become due
and payable at
-78-
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 and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with any accrued interest
(and any Additional Amounts) to the Redemption Date; PROVIDED, HOWEVER, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only upon presentation and
surrender of coupons for such interest (at an office or agency located outside
the United States except as otherwise provided in Section 1002), and PROVIDED,
FURTHER, that installments of interest on Registered Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Regular Record Dates or Special Record
Dates, as the case may be, according to their terms and the provisions of
Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; PROVIDED,
HOWEVER, that any interest (and any Additional Amounts) represented by coupons
shall be payable only upon presentation and surrender of those coupons at an
office or agency for such Security located outside of the United States except
as otherwise provided in Section 1002.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Registered Security which is to be redeemed only in part
shall be surrendered at any office or agency of the Company maintained for that
purpose pursuant to Section 1002 (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 Registered Security or Registered Securities of
the same series containing identical terms and provisions, 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 Security in global form is so
-79-
surrendered, the Company shall execute, and the Trustee shall authenticate and
deliver to the U.S. Depository or other Depository for such Security in global
form as shall be specified in the Company Order with respect thereto to the
Trustee, without service charge, a new Security in global form in a denomination
equal to and in exchange for the unredeemed portion of the principal of the
Security in global form so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise specified
as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Securities of such series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES.
The Company may, in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of a series required to be
made pursuant to the terms of such Securities (i) deliver Outstanding Securities
of such series (other than any of such Securities previously called for
redemption) together in the case of any Bearer Securities of such series with
all unmatured coupons appertaining thereto, and (ii) apply as a credit
Securities of such 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, as provided for by the terms of such Securities; PROVIDED that such
Securities so delivered or applied as a credit have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the applicable Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the
-80-
amount of the next ensuing mandatory sinking fund payment for that series
pursuant to the terms of that series, 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 of that series pursuant to
Section 1202, and the optional amount, if any, to be added in cash to the next
ensuing mandatory sinking fund payment, and will also deliver to the Trustee any
Securities to be so credited and not theretofore delivered. If such Officers'
Certificate shall specify an optional amount to be added in cash to the next
ensuing mandatory sinking fund payment, the Company shall thereupon be obligated
to pay the amount therein specified. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 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.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
the terms of the Securities of such series. The repayment of any principal
amount of Securities pursuant to such option of the Holder to require repayment
of Securities before their Stated Maturity, for purposes of Section 309, shall
not operate as a payment, redemption or satisfaction of the indebtedness
represented by such Securities unless and until the Company, at its option,
shall deliver or surrender the same to the Trustee with a directive that such
Securities be canceled. Notwithstanding anything to the contrary contained in
this Article Thirteen, in connection with any repayment of Securities, the
Company may arrange for the purchase of any Securities by an agreement with one
or more investment bankers or other purchasers to purchase such Securities by
paying to the Holders of such Securities on or before the close of business on
the repayment date an amount not less than the repayment price payable by the
Company on repayment of such Securities, and the obligation of the Company to
pay the repayment price of such Securities shall be satisfied and discharged to
the extent such payment is so paid by such purchasers.
-81-
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of any series may be called at
any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided by or pursuant to this Indenture to be made, given or taken by
Holders of Securities of such series.
SECTION 1402. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1401, to
be held at such time and at such place in the Borough of Manhattan, The
City of New York, or, if Securities of such series have been issued in
whole or in part as Bearer Securities, in London or in such place
outside the United States as the Trustee shall determine. Notice of
every meeting of Holders of Securities of any series, setting forth the
time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 21 nor more than 180 days prior
to the date fixed for the meeting.
(b) In case at any time the Company, by or pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to
call a meeting of the Holders of Securities of such series for any
purpose specified in Section 1401, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have made the first publication of the notice of
such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series in the
amount above specified, as the case may be, may determine the time and
the place in the Borough of Manhattan, The City of New York, or, if
Securities of such series have been issued in whole or in part as Bearer
Securities, in London for such meeting and may call such meeting for
such purposes by giving notice thereof as provided in subsection (a) of
this Section.
SECTION 1403. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of
any series, a Person shall be (i) a Holder of one or more Outstanding Securities
of such series, or (ii) a Person appointed by an instrument in writing as proxy
for a Holder or Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders of Securities of
-82-
any series shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 1404. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of
the Outstanding Securities of a series shall constitute a quorum for a meeting
of Holders of Securities of such series; PROVIDED, HOWEVER, that if any action
is to be taken at such meeting with respect to a consent or waiver which this
Indenture or the terms of such Securities expressly provides may be given by the
Holders of not less than 66 2/3% in principal amount of the Outstanding
Securities of a series, then with respect to such action (and only such action),
the Persons entitled to vote 66 2/3% in principal amount of the Outstanding
Securities of such series shall constitute a quorum. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Securities of such series, be
dissolved. In any other case the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1402(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum with respect to each action to be considered at such
meeting.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting duly convened or an adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted only by the affirmative
vote of the Holders of a majority in principal amount of the Outstanding
Securities of that series; PROVIDED, HOWEVER, that, except as limited by the
proviso to Section 902, any resolution with respect to any consent or waiver
which this Indenture expressly provides may be given by the Holders of not less
than 66 2/3% in principal amount of the Outstanding Securities of a series may
be adopted at a meeting duly convened or an adjourned meeting duly reconvened
and at which a quorum is present as aforesaid only by the affirmative vote of
the Holders of 66 2/3% in principal amount of the Outstanding Securities of that
series; and PROVIDED, FURTHER, that, except as limited by the proviso to Section
902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting duly convened or
an adjourned meeting duly reconvened and at which a quorum is present as
aforesaid by the affirmative vote of the Holders of such specified percentage in
principal amount of the Outstanding Securities of that series.
-83-
Any resolution passed or decision taken at any meeting of Holders
of Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
SECTION 1405. DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable
for any meeting of Holders of Securities of a series in regard to proof
of the holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of
votes, the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Securities
shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in
Section 104 or by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized
by Section 104 to certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing proxies,
regular on their face, may be presumed valid and genuine without the
proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in Section
1402(b), in which case the Company or the Holders of Securities of the
series calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of
Outstanding Securities of such series held or represented by him;
PROVIDED, HOWEVER, that no vote shall be cast or counted at any meeting
in respect of any Security challenged as not Outstanding and ruled by
the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a Security of
such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1402 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in
principal amount
-84-
of the Outstanding Securities of such series represented at the meeting;
and the meeting may be held as so adjourned without further notice.
SECTION 1406. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders
of Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1402 and, if
applicable, Section 1404. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 1501. SECURITIES IN FOREIGN CURRENCIES.
Except as otherwise provided in the definition of "Outstanding"
in Section 101, whenever this Indenture provides for any distribution to Holders
of Securities, in the absence of any provision to the contrary in the form of
Security of any particular series, any amount in respect of any Security
denominated in a currency or currencies other than Dollars shall be treated for
any such distribution as that amount of Dollars that could be obtained for such
amount on such reasonable basis of exchange and as of the record date with
respect to Registered Securities of such series (if any) for such distribution
(or, if there shall be no applicable record date, such other date reasonably
proximate to the date of such distribution) as the Company may specify in a
written notice to the Trustee or, in the absence of such written notice, as the
Trustee may determine.
* * * * *
-85-
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
-86-
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.
AMERICAN GENERAL FINANCE
CORPORATION
[CORPORATE SEAL]
By __________________________
PHILIP M. HANLEY
SENIOR VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER
Attest: ________________________
GARY M. SMITH
VICE PRESIDENT, SECRETARY
GENERAL COUNSEL
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
[CORPORATE SEAL]
By ___________________________
Attest: _______________________ ___________________________
-87-
STATE OF INDIANA: ss.
ss.
COUNTY OF VANDERBURGH: ss.
On the day of , 1994, before me personally came Philip M.
Hanley, to me known, who, being by me duly sworn, did depose and say that he is
Senior Vice President and Chief Financial Officer of AMERICAN GENERAL FINANCE
CORPORATION, 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.
My Commission Expires: ______________________________
Resident of Vanderburgh NOTARY PUBLIC
County, Indiana
STATE OF NEW YORK: ss.
ss.
COUNTY OF NEW YORK: ss.
On the day of , 1994, before me personally came
, to me known, who, being by me duly sworn, did depose and say
that he resides at , ; that he is a ____________________ of
The Chase Manhattan Bank (National Association), 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.
_____________________________
NOTARY PUBLIC
-88-
Exhibit 4(b)
AMERICAN GENERAL FINANCE CORPORATION
and
As Warrant Agent
WARRANT AGREEMENT
Dated as of _________________
TABLE OF CONTENTS
PAGE
Parties .................................................................... 1
Recitals ................................................................... 1
ARTICLE I.
ISSUANCE, EXECUTION AND AUTHENTICATION
OF WARRANT CERTIFICATES.
Section 1.01. Issuance of Warrant Certificates............................. 1
Section 1.02. Form of Warrant Certificates................................. 2
Section 1.03. Execution and Authentication of Warrant Certificates......... 2
Section 1.04. Temporary Warrant Certificates............................... 3
Section 1.05. Payment of Taxes............................................. 4
Section 1.06. Definition of Holder......................................... 4
ARTICLE II.
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS.
Section 2.01. Warrant Price................................................ 4
Section 2.02. Duration of Warrants......................................... 5
Section 2.03. Exercise of Warrants......................................... 5
ARTICLE III.
[REGISTRATION;] EXCHANGE, TRANSFER AND
SUBSTITUTION OF WARRANT CERTIFICATES.
Section 3.01. [Registration;] Exchange and Transfer of Warrant
Certificates.............................................. 7
Section 3.02. Mutilated, Destroyed, Lost or Stolen Warrant Certificates.... 8
Section 3.03. Persons Deemed Owners........................................ 9
Section 3.04. Cancellation of Warrant Certificates......................... 9
-i-
ARTICLE IV.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES.
Section 4.01. No Rights as Holders of Warrant Debt Securities Conferred
by Warrants or Warrant Certificates........................ 10
Section 4.02. Holder of Warrant Certificate May Enforce Rights............. 10
ARTICLE V.
CONCERNING THE WARRANT AGENT.
Section 5.01. Warrant Agent................................................ 10
Section 5.02. Conditions of Warrant Agent's Obligations.................... 10
Section 5.03. Resignation, Removal and Appointment of Successor............ 13
ARTICLE VI.
MISCELLANEOUS.
Section 6.01. Consolidations and Mergers of the Company and Sales and
Conveyances Permitted Subject to Certain Conditions........ 14
Section 6.02. Rights and Duties of Successor Corporation................... 14
Section 6.03. Amendment.................................................... 15
Section 6.04. Notices and Demands to the Company and Warrant Agent......... 15
Section 6.05. Addresses.................................................... 15
Section 6.06. Governing Law................................................ 15
Section 6.07. Delivery of Prospectus....................................... 16
Section 6.08. Obtaining of Governmental Approvals.......................... 16
Section 6.09. Persons Having Rights under Warrant Agreement................ 16
Section 6.10. Headings..................................................... 16
-ii-
Section 6.11. Counterparts................................................. 16
Section 6.12. Inspection of Agreement...................................... 17
Section 6.13. Notices to Holders of Warrants............................... 17
Testimonium................................................................. 17
Signatures.................................................................. 17
Exhibit A--Form of Warrant Certificate in Registered Form................... A-1
Exhibit B--Form of Warrant Certificate in Bearer Form....................... B-1
Exhibit C--Form of Certificate for Delivery of Bearer Warrants or Warrant
Debt Securities in Bearer Form................................ C-1
-iii-
THIS WARRANT AGREEMENT, dated as of _____________, 19__, between
American General Finance Corporation, a corporation duly organized and existing
under the laws of the State of Indiana (the "Company"), and
____________________, a [corporation] [national banking association] organized
and existing under the laws of ____________________, as Warrant Agent (herein
called the "Warrant Agent").
WHEREAS, the Company has entered into an Indenture dated as of
October 1, 1994 (the "Indenture"), with The Chase Manhattan Bank (National
Association), as trustee (such trustee, and any successors to such trustee,
being herein called the "Trustee"), providing for the issuance from time to time
of its unsecured and unsubordinated notes or other evidences of indebtedness, to
be issued in one or more series as provided in the Indenture;
WHEREAS, the Company proposes to sell [IF OFFERED DEBT SECURITIES
AND WARRANTS--[title of Debt Securities being offered] (the "Offered Debt
Securities") with] warrant certificates (such warrant certificates and other
warrant certificates issued pursuant to this Agreement being herein referred to
as the "Warrant Certificates") evidencing one or more warrants (the "Warrants"
or, individually, a "Warrant") representing the right to purchase [title of Debt
securities purchasable through exercise of Warrants] (the "Warrant Debt
Securities"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf
of the Company, and the Warrant Agent is willing to so act, in connection with
the issuance, exchange, exercise and replacement of the Warrant Certificates,
and in this Agreement wishes to set forth, among other things, the form and
provisions of the Warrant Certificates and the terms and conditions on which
they may be issued, exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE, EXECUTION AND AUTHENTICATION
OF WARRANT CERTIFICATES.
Section 1.01. ISSUANCE OF WARRANT CERTIFICATES. [IF WARRANTS
ALONE--Upon issuance, each Warrant Certificate shall evidence one or more
Warrants.] [IF OFFERED DEBT SECURITIES AND WARRANTS--Warrant Certificates shall
be [initially] issued in units with the Offered Debt Securities and shall [not]
be separately transferable [before _______________, 19__ (the "Detachable
Date")]. The Warrant Certificate or Certificates included in each
-1-
such unit shall evidence an aggregate of _____ Warrants for each __________
principal amount of Offered Debt Securities included in such unit.] Each Warrant
evidenced thereby shall represent the right, subject to the provisions contained
herein and therein, to purchase Warrant Debt Securities in the aggregate
principal amount of __________.
Section 1.02. FORM OF WARRANT CERTIFICATES. The Warrant
Certificates (including the Form[s] of Exercise [and Assignment] to be set forth
on the reverse thereof) shall be in [either] [registered form ("Registered
Warrants")] [or] [bearer form ("Bearer Warrants")] in substantially the
[respective] form[s] thereof set forth in Exhibit A [and Exhibit B] hereto,
shall be printed, lithographed or engraved on steel engraved borders (or in any
other manner determined by the officers executing such Warrant Certificates, as
evidenced by their execution of such Warrant Certificates) 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 any law or with
any rule or regulation made pursuant thereto or with any rule or regulation of
any securities exchange on which the Warrant Certificates may be listed or as
may, consistently herewith, be determined by the officers executing such Warrant
Certificates, as evidenced by their execution of the Warrant Certificates.
Section 1.03. EXECUTION AND AUTHENTICATION OF WARRANT
CERTIFICATES. The Warrant Certificates shall be executed on behalf of the
Company by its Chairman, its President, one of its Vice Presidents (any
reference to a Vice President of the Company herein shall be deemed to include
any Vice President of the Company whether or not designated by a number or a
word or words added before or after the title "Vice President") or its Treasurer
under its corporate seal reproduced thereon and attested by its Secretary or one
of its Assistant Treasurers or Assistant Secretaries. The signature of any of
these officers on the Warrant Certificates may be manual or facsimile.
Warrant Certificates evidencing the right to purchase an
aggregate principal amount not exceeding __________ of Warrant Debt Securities
(except as provided in Sections 1.04, 2.03(c), 3.01 and 3.02) may be executed by
the Company and delivered to the Warrant Agent upon the execution of this
Warrant Agreement or from time to time thereafter. The Warrant Agent shall, upon
receipt of Warrant Certificates duly executed on behalf of the Company,
authenticate Warrant Certificates evidencing Warrants representing the right to
purchase up to __________ aggregate principal amount of Warrant Debt Securities
and shall deliver such Warrant Certificates to or upon the order of the Company.
Subsequent to such original issuance of the Warrant Certificates, the Warrant
Agent shall authenticate a Warrant Certificate only if the Warrant Certificate
is issued in exchange or substitution for one or more
-2-
previously authenticated Warrant Certificates [IF REGISTERED WARRANTS--or in
connection with their transfer], as hereinafter provided.
Each Warrant Certificate shall be dated the date of its
authentication by the Warrant Agent.
No Warrant Certificate shall be entitled to any benefit under
this Agreement or be valid or obligatory for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
authenticated by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence, and the only evidence, that the Warrant Certificate so
authenticated has been duly issued hereunder.
Warrant Certificates 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
Warrant Certificates or did not hold such offices at the date of such Warrant
Certificates.
[Warrant Certificates in bearer form, whether upon original
issuance, transfer, exchange or partial exercise, shall be delivered only
outside the United States of America, its territories and possessions and other
areas subject to its jurisdiction and only upon delivery to the Warrant Agent
from the person entitled to physical delivery of such Warrant Certificates of an
executed certification substantially in the form of Exhibit C hereto.]
Section 1.04. TEMPORARY WARRANT CERTIFICATES. Pending the
preparation of definitive Warrant Certificates, the Company may execute, and
upon the order of the Company the Warrant Agent shall authenticate and deliver,
temporary Warrant Certificates which are printed, lithographed, typewritten,
mimeographed or otherwise produced substantially of the tenor of the definitive
Warrant Certificates in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers of the
Company executing such Warrant Certificates may determine, as evidenced by their
execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company shall
cause definitive Warrant Certificates to be prepared without unreasonable delay.
After the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office of
the Warrant Agent [or ____________________], without charge to the
-3-
Holder (as defined in Section 1.06 hereof). Upon surrender for cancellation of
any one or more temporary Warrant Certificates the Company shall execute and the
Warrant Agent shall authenticate and deliver in exchange therefor definitive
Warrant Certificates representing the same aggregate number of Warrants. Until
so exchanged, the temporary Warrant Certificates shall in all respects be
entitled to the same benefits under this Agreement as definitive Warrant
Certificates.
Section 1.05. PAYMENT OF TAXES. The Company shall pay all stamp
taxes and other duties, if any, to which, under the laws of the United States of
America or any state or political subdivision thereof, this Agreement or the
original issuance of the Warrant Certificates may be subject.
Section 1.06. DEFINITION OF HOLDER. The term "Holder" as used
herein with respect to any Warrant Certificate shall mean [IF OFFERED DEBT
SECURITIES AND WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE--, prior to the
Detachable Date, the [bearer] [registered owner] of the Offered Debt Security to
which such Warrant Certificate was initially attached, and, after such
Detachable Date,] [the bearer of such Warrant Certificate] [the person in whose
name such Warrant Certificate shall be registered upon the books to be
maintained by the Warrant Agent for that purpose pursuant to Section 3.01]. [IF
OFFERED DEBT SECURITIES AND WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE--Prior
to the Detachable Date, the Company will, or will cause the registrar of the
Offered Debt Securities to, make available to the Warrant Agent current
information as to holders of the Offered Debt Securities.]
ARTICLE II.
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS.
Section 2.01. WARRANT PRICE.(1) [During the period from
_______________, 19__ through and including _______________, 19__, each Warrant
shall entitle the Holder thereof, subject to the provisions of this Agreement,
to purchase from the Company the principal amount of Warrant Debt Securities
stated in the Warrant Certificate at the exercise price of _____% of the
principal amount thereof [plus accrued amortization, if any, of the original
issue discount of the Warrant Debt Securities] [plus accrued interest, if any,
from the most recent date from which interest shall have been paid on the
Warrant Debt Securities or, if no interest shall have been paid on the Warrant
Debt Securities, from _______________,
(1) Complete and modify the provisions of this Section as
appropriate to reflect the exact terms of the Warrants and
the Warrant Debt Securities.
-4-
19__];] [D]uring the period from _______________, 19__ through and including
_______________, 19__, each Warrant shall entitle the Holder thereof, subject to
the provisions of this Agreement, to purchase from the Company the principal
amount of Warrant Debt Securities stated in the Warrant Certificate at the
exercise price of _____% of the principal amount thereof [plus accrued
amortization, if any, of the original issue discount of the Warrant Debt
Securities] [plus accrued interest, if any, from the most recent date from which
interest shall have been paid on the Warrant Debt Securities or, if no interest
shall have been paid on the Warrant Debt Securities, from _______________,
19__]. [[In each case,] [T]he original issue discount (__________ for each
[[$1,000] [foreign currency amount] principal amount] [foreign currency unit
amount] of Warrant Debt Securities) will be amortized at a _____% annual rate,
computed on a[n] [semi-]annual basis [, using a 360-day year consisting of
twelve 30-day months].] Such exercise price of each Warrant is referred to in
this Agreement as the "Exercise Price".
Section 2.02. DURATION OF WARRANTS. Any Warrant evidenced by a
Warrant Certificate may be exercised at any time, as specified herein, on or
after [the date thereof] [____________,19__] and at or before the close of
business on _______________, 19__ (the "Expiration Date"). Each Warrant not
exercised at or before the close of business on the Expiration Date shall become
void, and all rights of the Holder of the Warrant Certificate evidencing such
Warrant under this Agreement or otherwise shall cease.
Section 2.03. EXERCISE OF WARRANTS.
(a) During the period specified in Section 2.02, any whole number
of Warrants may be exercised by providing certain information as set
forth on the reverse side of the Warrant Certificate and by paying in
full, [in lawful money of the United States of America] [in specified
applicable currency or units], [in cash or by certified check or
official bank check in New York Clearing House or similar next day
funds], [by surrender of the [specified aggregate amount of identified
securities]] [by bank wire transfer in immediately available funds], of
the Exercise Price for each Warrant exercised, to the Warrant Agent at
the place or at the places set forth in the Warrant Certificate,
provided that such exercise is subject to receipt within five business
days of such [payment] [wire transfer] by the Warrant Agent of the
Warrant Certificate with the Form of Exercise set forth in the Warrant
Certificate duly completed and executed. The date on which payment in
full of the Exercise Price for a Warrant is received by the Warrant
Agent, subject to receipt of the Warrant Certificate as aforesaid, shall
-5-
be deemed to be the date on which such Warrant is exercised. The Warrant
Agent shall deposit all funds received by it as payment for the exercise
of Warrants to the account of the Company maintained with it [IF
NON-DOLLAR DENOMINATED FUNDS--or in such other account designated by the
Company] for such purpose and shall advise the Company by telephone at
the end of each day on which such a [payment] [wire transfer] is
received of the amount so deposited to its account. The Warrant Agent
shall promptly confirm such telephonic advice to the Company in writing.
(b) The Warrant Agent shall from time to time, as promptly as
practicable after the exercise of any Warrants in accordance with the
terms and conditions of this Agreement and the Warrant Certificates,
advise the Company and the Trustee of (i) the number of Warrants so
exercised, (ii) the instructions of each Holder of the Warrant
Certificates evidencing such Warrants with respect to delivery of the
Warrant Debt Securities to which such Holder is entitled upon such
exercise, and instructions of such Holder as to delivery of Warrant
Certificates evidencing the balance, if any, of the Warrants remaining
after such exercise, and (iii) such other information as the Company or
the Trustee shall reasonably require.
(c) As soon as practicable after the exercise of any Warrants,
the Company shall issue, pursuant to the Indenture, in authorized
denominations, to or upon the order of the Holder of the Warrant
Certificate evidencing such Warrants, the Warrant Debt Security or
Warrant Debt Securities to which such Holder is entitled in [fully
registered form, registered in such name or names as may be directed by
such Holder] [or] [bearer form; PROVIDED, HOWEVER, [that a Holder of
Warrant Certificates in registered form may not direct the Company or
the Trustee to issue any Warrant Debt Security in bearer form and
PROVIDED FURTHER,] that the Company, unless it determines otherwise in
its sole discretion, shall deliver Warrant Debt Securities in bearer
form only outside the United States of America, its territories and
possessions and other areas subject to its jurisdiction and only after
receipt by the Warrant Agent from the person entitled to physical
delivery of such Warrant Debt Securities of an executed certification
substantially in the form of Exhibit C hereto]. If fewer than all of the
Warrants evidenced by such Warrant Certificate were exercised, the
Company shall execute and an authorized officer of the Warrant Agent
shall manually authenticate
-6-
and deliver a new Warrant Certificate evidencing the
number of Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or other
tax or other governmental charge required to be paid in connection with
any transfer involved in the issue of the Warrant Debt Securities; and
in the event that any such transfer is involved, the Company shall not
be required to issue or deliver any Warrant Debt Securities until such
tax or other charge shall have been paid or it has been established to
the Company's satisfaction that no such tax or other charge is due.
ARTICLE III.
[REGISTRATION;] EXCHANGE, TRANSFER AND
SUBSTITUTION OF WARRANT CERTIFICATES.
Section 3.01. [REGISTRATION;] EXCHANGE AND TRANSFER OF
WARRANT CERTIFICATES. [If Registered Warrants--The Warrant Agent
shall keep, at its corporate trust office [and at __________],
books in which, subject to such reasonable regulations as it may
prescribe, it shall register Warrant Certificates and transfers of
outstanding Warrant Certificates.]
[IF OFFERED DEBT SECURITIES AND WARRANTS WHICH ARE NOT
IMMEDIATELY DETACHABLE--Prior to the Detachable Date, a Warrant Certificate may
be exchanged or transferred only together with the Offered Debt Security to
which such Warrant Certificate was initially attached, and only for the purpose
of effecting, or in conjunction with, an exchange or transfer of such Offered
Debt Security. Additionally, on or prior to the Detachable Date, each transfer
or exchange of an Offered Debt Security [on the register of the Offered Debt
Securities] shall operate also to transfer or exchange the Warrant Certificate
or Certificates to which such Offered Debt Security was initially attached.
After the Detachable Date, upon] [IF OFFERED DEBT SECURITIES AND WARRANTS WHICH
ARE IMMEDIATELY DETACHABLE OR IF WARRANTS ALONE --Upon] surrender at the
corporate trust office of the Warrant Agent [or ____________________] of Warrant
Certificates properly endorsed [or accompanied by appropriate instruments of
transfer] and accompanied by written instructions for [transfer or] exchange,
all in form satisfactory to the Company and the Warrant Agent, such Warrant
Certificates may be exchanged for other Warrant Certificates [If REGISTERED
WARRANTS--or may be transferred in whole or in part]. Warrant Certificates
issued in exchange for [or upon transfer of] surrendered Warrant Certificates
shall evidence the same aggregate number of Warrants as the Warrant Certificates
so surrendered and shall be issued in [registered] [or] [bearer] form [as may be
directed by the Holder of the surrendered Warrant Certificate] [;
-7-
PROVIDED, HOWEVER, that, unless the Company otherwise directs, the Warrant Agent
shall deliver Bearer Warrants only outside the United States, its territories
and possessions and other areas subject to its jurisdiction, and only upon
delivery from the person entitled to physical delivery of such Warrant
Certificates of an executed certificate substantially in the form of Exhibit C
hereto]. No service charge shall be made for any exchange [or transfer] of
Warrant Certificates, but the Company may require payment of a sum sufficient to
cover any stamp or other tax or governmental charge that may be imposed in
connection with any such exchange [or transfer]. Whenever any Warrant
Certificates are so surrendered for exchange [or transfer], the Company shall
execute and an authorized officer of the Warrant Agent shall manually
authenticate and deliver to the person or persons entitled thereto a Warrant
Certificate or Warrant Certificates as so requested. The Warrant Agent shall not
be required to effect any exchange [or transfer] which would result in the
issuance of a Warrant Certificate evidencing a fraction of a Warrant or a number
of full Warrants and a fraction of a Warrant. All Warrant Certificates issued
upon any exchange [or transfer] of Warrant Certificates shall evidence the same
obligations, and be entitled to the same benefits under this Agreement, as the
Warrant Certificates surrendered for such exchange [or transfer]. [Subject to
this Section 3.01, each Warrant Certificate issued in bearer form shall be
transferable by delivery and shall be deemed negotiable.]
Section 3.02. MUTILATED, DESTROYED, LOST OR STOLEN WARRANT
CERTIFICATES. If any mutilated Warrant Certificate is surrendered to the Warrant
Agent, the Company shall execute and an officer of the Warrant Agent shall
manually authenticate and deliver in exchange therefor a new Warrant Certificate
of like tenor and principal amount and bearing a number not contemporaneously
outstanding. If there shall be delivered to the Company and the Warrant Agent
(i) evidence to their satisfaction of the destruction, loss or theft of any
Warrant Certificate and of the ownership thereof 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
Warrant Agent that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall execute and upon its request an officer of the
Warrant Agent shall manually authenticate and deliver, in lieu of any such
destroyed, lost or stolen Warrant Certificate, a new Warrant Certificate of like
tenor and principal amount and bearing a number not contemporaneously
outstanding. Upon the issuance of any new Warrant Certificate 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 Warrant Agent) connected
therewith. Every new Warrant Certificate issued pursuant to this Section in lieu
of any destroyed, lost or stolen Warrant Certificate shall evidence an
-8-
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Warrant Certificate shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Agreement equally
and proportionately with any and all other Warrant Certificates 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 Warrant Certificates.
Section 3.03. PERSONS DEEMED OWNERS. [IF OFFERED DEBT SECURITIES
AND WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE--Prior to the Detachable Date,
the Company, the Warrant Agent and all other persons may treat the owner of any
Offered Debt Security as the owner of the Warrant Certificates initially
attached thereto for any purpose and as the person entitled to exercise the
rights represented by the Warrants evidenced by such Warrant Certificates, any
notice to the contrary notwithstanding. After the Detachable Date, the] [IF
REGISTERED WARRANTS--and prior to due presentment of a Warrant Certificate for
registration of transfer, the] [IF OFFERED DEBT SECURITIES AND WARRANTS WHICH
ARE IMMEDIATELY DETACHABLE OR WARRANTS ALONE--THE] Company, the Warrant Agent
and all other persons may treat the Holder as the owner thereof for any purpose
and as the person entitled to exercise the rights represented by the Warrants
evidenced thereby, any notice to the contrary notwithstanding.
Section 3.04. CANCELLATION OF WARRANT CERTIFICATES. Any
Warrant Certificate surrendered for exchange [, transfer] or exercise of the
Warrants evidenced thereby shall, if surrendered to the Company, be delivered to
the Warrant Agent, and [IF WARRANT CERTIFICATES ARE ISSUED IN BEARER FORM--,
except as provided below,] all Warrant Certificates surrendered or so delivered
to the Warrant Agent shall be promptly cancelled by it and shall not be reissued
and, except as expressly permitted by this Agreement, no Warrant Certificate
shall be issued hereunder in lieu or in exchange thereof. [IF WARRANT
CERTIFICATES ARE ISSUED IN BEARER FORM -- Warrant Certificates issued in bearer
form delivered to the Warrant Agent in exchange for Warrant Certificates of
other denominations may be retained by the Warrant Agent for reissue as
authorized hereunder.] The Company may at any time deliver to the Warrant Agent
for cancellation any Warrant Certificates previously issued hereunder which the
Company may have acquired in any manner whatsoever, and all Warrant Certificates
so delivered shall be promptly cancelled by the Warrant Agent. All cancelled
Warrant Certificates held by the Warrant Agent shall be disposed of as
instructed by the Company, subject to applicable law.
-9-
ARTICLE IV.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES.
Section 4.01. NO RIGHTS AS HOLDERS OF WARRANT DEBT SECURITIES
CONFERRED BY WARRANTS OR WARRANT CERTIFICATES. No Warrant Certificate or Warrant
evidenced thereby shall entitle the Holder thereof to any of the rights of a
holder of the Warrant Debt Securities, including, without limitation, the right
to receive the payment of principal of [or any premium or interest on or
Additional Amounts (as defined in the Indenture) in respect of,] the Warrant
Debt Securities or to enforce any of the covenants in the Indenture.
Section 4.02. HOLDER OF WARRANT CERTIFICATE MAY ENFORCE RIGHTS.
Notwithstanding any of the provisions of this Agreement, any Holder of any
Warrant Certificate, without the consent of the Warrant Agent, the Trustee, the
holder of any Warrant Debt Securities or the Holder of any other Warrant
Certificate, may, in his own behalf and for his own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce or otherwise in respect of, his right to exercise the
Warrant or Warrants evidenced by his Warrant Certificate in the manner provided
in the Warrant Certificates and in this Agreement.
ARTICLE V.
CONCERNING THE WARRANT AGENT.
Section 5.01. WARRANT AGENT. The Company hereby appoints
____________________ as Warrant Agent of the Company in respect of the Warrants
and the Warrant Certificates upon the terms and subject to the conditions herein
set forth, and ____________________ hereby accepts such appointment. The Warrant
Agent shall have the power and authority granted to and conferred upon it in the
Warrant Certificates and hereby and such further power and authority to act on
behalf of the company as the Company may hereafter grant to or confer upon it.
All of the terms and provisions with respect to such power and authority
contained in the Warrant Certificates are subject to and governed by the terms
and provisions hereof.
Section 5.02. CONDITIONS OF WARRANT AGENT'S OBLIGATIONS. The
Warrant Agent accepts its obligations herein set forth, upon the terms and
conditions hereof, including the following, to all of which the Company agrees
and to all of which the rights hereunder of the Holders from time to time of the
Warrant Certificates shall be subject:
-10-
(a) COMPENSATION AND INDEMNIFICATION. The Company agrees promptly
to pay the Warrant Agent the compensation to be agreed upon with the
Company for all services rendered by the Warrant Agent and to reimburse
the Warrant Agent for reasonable out-of-pocket expenses (including
counsel fees) incurred by the Warrant Agent in connection with the
services rendered hereunder by the Warrant Agent. The Company also
agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on the part of the Warrant Agent, arising out of or in
connection with its acting as such Warrant Agent hereunder, including
the reasonable costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance at any time
of its powers or duties hereunder. The obligations of the Company under
this subsection (a) shall survive the exercise of the Warrant
Certificates and the resignation or removal of the Warrant Agent.
(b) AGENT FOR THE COMPANY. In acting under this Warrant Agreement
and in connection with the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any obligation
or relationship of agency or trust for or with any of the owners or
Holders of the Warrant Certificates.
(c) COUNSEL. The Warrant Agent may consult with counsel, which
may include counsel for the Company, and the written advice of such
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.
(d) DOCUMENTS. The Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken or omitted by
it in reliance upon any Warrant Certificates, notice, direction,
consent, certificate, affidavit, statement or other paper or document
reasonably believed by it to be genuine and to have been presented or
signed by the proper parties.
(e) CERTAIN TRANSACTIONS. The Warrant Agent, any of its officers,
directors and employees, or any other agent of the Company, in its
individual or any other capacity, may become the owner of, or acquire
any interest in, any Warrant Certificates, with the same rights that it
would have if it were not such Warrant Agent, officer, director,
employee or other agent, and, to the extent permitted by applicable law,
it may engage or be interested in any financial or other transaction
-11-
with the Company and may act on, or as depositary, trustee or agent for,
any committee or body of holders of Warrant Debt Securities or other
obligations of the Company as freely as if it were not such Warrant
Agent, officer, director, employee or other agent. Nothing in this
Warrant Agreement shall be deemed to prevent the Warrant Agent from
acting as Trustee under the Indenture.
(f) NO LIABILITY FOR INTEREST. The Warrant Agent shall not be
under any liability for interest on any monies at any time received by
it pursuant to any of the provisions of this Agreement or of the Warrant
Certificates unless otherwise agreed to in writing by the Company and
the Warrant Agent.
(g) NO LIABILITY FOR INVALIDITY. The Warrant Agent shall not
incur any liability with respect to the validity of this Agreement or
any of the Warrant Certificates.
(h) NO RESPONSIBILITY FOR REPRESENTATIONS. The Warrant Agent
shall not be responsible for any of the recitals or representations
contained herein or in the Warrant Certificates (except as to the
Warrant Agent's Certificate of Authentication thereon), all of which are
made solely by the Company.
(i) NO IMPLIED OBLIGATIONS. The Warrant Agent shall be obligated
to perform such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be
read into this Agreement or the Warrant Certificates against the Warrant
Agent. The Warrant Agent shall not be under any obligation to take any
action hereunder which may tend to involve it in any expense or
liability, the payment of which within a reasonable time is not, in its
reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the
Company of any of the Warrant Certificates authenticated by the Warrant
Agent and delivered by it to the Company pursuant to this Agreement or
for the application by the Company of the proceeds of the Warrant
Certificates or any exercise of the Warrants evidenced thereby. The
Warrant Agent shall have no duty or responsibility in case of any
default by the Company in the performance of its covenants or agreements
contained herein or in the Warrant Certificates or in the Warrant Debt
Securities or in the case of the receipt of any written demand from a
Holder of a Warrant Certificate with respect to such default, including,
without limiting the generality of the foregoing, any duty or
-12-
responsibility to initiate or attempt to initiate any proceedings at law
or otherwise or, except as provided in Section 6.04 hereof, to make any
demand upon the Company.
Section 5.03. RESIGNATION, REMOVAL AND APPOINTMENT OF SUCCESSOR.
(a) The Company agrees, for the benefit of the Holders from time
to time of the Warrant Certificates, that there shall at all times be a
Warrant Agent hereunder until all of the Warrant Certificates are no
longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part,
specifying the date on which it desires its resignation to become
effective; provided that, without the consent of the Company, such date
shall not be less than [three months] after the date on which such
notice is given. The Warrant Agent hereunder may be removed at any time
by the filing with it of an instrument in writing signed by or on behalf
of the Company and specifying such removal and the date on which the
Company expects such removal to become effective; provided that, without
the consent of the Warrant Agent, such date shall not be less than [one
month] after the date on which such notice is given. Such resignation or
removal shall take effect upon the appointment by the Company of a
successor Warrant Agent (which shall be a bank or trust company
organized and doing business under the laws of The United States of
America, any State thereof or the District of Columbia and authorized
under such laws to exercise corporate trust powers) by an instrument in
writing filed with such successor Warrant Agent and the acceptance of
such appointment by such successor Warrant Agent pursuant to Section
5.03(d).
(c) In case at any time the Warrant Agent shall resign, or be
removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or shall file a voluntary petition in bankruptcy
or make an assignment for the benefit of its creditors or consent to the
appointment of a receiver or custodian of all or any substantial part of
its property, or shall admit in writing its inability to pay or meet its
debts as they mature, or if a receiver or custodian of it or of all or
any substantial part of its property shall be appointed, or if an order
of any court shall be entered approving any petition filed by or against
it under the provisions of any applicable bankruptcy or similar law, or
if any public officer shall have taken charge or control of the
-13-
Warrant Agent or of its property or affairs, a successor Warrant Agent,
qualified as aforesaid, shall be appointed by the Company by an
instrument in writing, filed with the successor Warrant Agent. Upon the
appointment as aforesaid of a successor Warrant Agent and acceptance by
the latter of such appointment, the Warrant Agent so superseded shall
cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company
an instrument accepting such appointment hereunder, and thereupon such
successor Warrant Agent, without any further act, deed or conveyance,
shall become vested with all the authority, rights, powers, trusts,
immunities, duties and obligations of such predecessor with like effect
as if originally named as Warrant Agent hereunder, and such predecessor,
upon payment of its charges and disbursements then unpaid, shall
thereupon become obligated to transfer, deliver and pay over, and such
successor Warrant Agent shall be entitled to receive, all monies,
securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may
be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Warrant Agent shall be a party,
or any corporation succeeding to all or substantially all the corporate
trust business of the Warrant Agent, provided that it shall be qualified
as aforesaid, shall be the successor Warrant Agent under this Agreement
without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE VI.
MISCELLANEOUS.
Section 6.01. CONSOLIDATIONS AND MERGERS OF THE COMPANY AND SALES
AND CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS. To the extent permitted
in the Indenture, the Company may consolidate with, or sell or convey all or
substantially all of its assets to, or merge with or into any other corporation.
Section 6.02. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. In
case of any such consolidation, merger, sale or conveyance and upon any such
assumption by the successor
-14-
corporation, such successor corporation shall succeed to and be substituted for
the Company, with the same effect as if it had been named herein, and the
predecessor corporation, except in the event of a conveyance by way of lease,
shall be relieved of any further obligation under this Agreement and the
Warrants. Such successor corporation thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all of the
Warrant Debt Securities issuable pursuant to the terms hereof. All the Warrant
Debt Securities so issued shall in all respects have the same legal rank and
benefit under the Indenture as the Warrant Debt Securities theretofore or
thereafter issued in accordance with the terms of this Agreement and the
Indenture.
In case of any such consolidation, merger, sale or conveyance,
such changes in phraseology and form (but not in substance) may be made in the
Warrant Debt Securities thereafter to be issued as may be appropriate.
Section 6.03. AMENDMENT. This Agreement may be amended by the
parties hereto, without the consent of the Holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective provision contained herein, or making such
provisions in regard to matters or questions arising under this Agreement as the
Company may deem necessary or desirable; provided that such action shall not
adversely affect the interests of the Holders of the Warrant Certificates in any
material respect. The Warrant Agent may, but shall not be obligated to, enter
into any amendment to this agreement which affects the Warrant Agent's own
rights, duties or immunities under this Agreement or otherwise.
Section 6.04. NOTICES AND DEMANDS TO THE COMPANY AND WARRANT
AGENT. If the Warrant Agent shall receive any notice or demand addressed to the
Company by the Holder of a Warrant Certificate pursuant to the provisions of the
Warrant Certificates, the Warrant Agent shall promptly forward such notice or
demand to the Company.
Section 6.05. ADDRESSES. Any communications from the Company to
the Warrant Agent with respect to this Agreement shall be addressed to
______________________________, Attention: ____________________, and any
communications from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to American General Finance Corporation, P.O. Box
59, Evansville, Indiana 47701, or 601 N.W. Second Street, Evansville, Indiana
47708-1061, Attention: Treasurer, with a copy to the Secretary (or such other
address as shall be specified in writing by the Warrant Agent or by the
Company).
Section 6.06. GOVERNING LAW. This Agreement and each
Warrant Certificate issued hereunder shall be governed by and
-15-
construed in accordance with the laws of the State of Indiana[, except that the
rights, limitations of rights, obligations, duties and immunities of the Warrant
Agent shall be governed by the laws of the State of New York].
Section 6.07. DELIVERY OF PROSPECTUS. If required in order to
make the Warrant Debt Securities transferable without restriction under the
Securities Act of 1933, as amended, the Company will furnish to the Warrant
Agent sufficient copies of a prospectus, appropriately supplemented, relating to
the Warrant Debt Securities (the "Prospectus"), and the Warrant Agent agrees
that, upon the exercise of any Warrant Certificate, the Warrant Agent will
deliver to the person designated to receive Warrant Debt Securities, prior to or
concurrently with the delivery of such Securities, a Prospectus.
Section 6.08. OBTAINING OF GOVERNMENTAL APPROVALS. The Company
will from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States Federal and
State laws (including, without limitation, the maintenance of the effectiveness
of a registration statement in respect of the Warrant Debt Securities under the
Securities Act of 1933, as amended), which may be or become required in
connection with exercise of the Warrant Certificates and the original issuance
and delivery of the Warrant Debt Securities.
Section 6.09. PERSONS HAVING RIGHTS UNDER WARRANT AGREEMENT.
Nothing in this Agreement expressed or implied and nothing that may be inferred
from any of the provisions hereof is intended, or shall be construed, to confer
upon, or give to, any person or corporation other than the Company, the Warrant
Agent and the Holders of the Warrant Certificates any right, remedy or claim
under or by reason of this Agreement or of any covenant, condition, stipulation,
promise or agreement hereof; and all covenants, conditions, stipulations,
promises and agreements in this Agreement contained shall be for the sole and
exclusive benefit of the Company and the Warrant Agent and their successors and
of the Holders of the Warrant Certificates.
Section 6.10. HEADINGS. The Article and Section headings
herein and the Table of Contents are for convenience of reference only and
shall not affect the construction hereof.
Section 6.11. COUNTERPARTS. This Agreement may be executed
in any number of counterparts, each of which so executed shall be deemed to be
an original; but such counterparts shall together constitute but one and the
same instrument.
-16-
Section 6.12. INSPECTION OF AGREEMENT. A copy of this Agreement
shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent [and at _______________] for inspection by the
Holder of any Warrant Certificate. The Warrant Agent may require such Holder to
submit his Warrant Certificate for inspection by it.
Section 6.13. NOTICES TO HOLDERS OF WARRANTS. Any notice to
Holders of Warrant Certificates which by any provisions of this Warrant
Agreement is required or permitted to be given shall be given [with respect to
Registered Warrants, by United States first class mail postage prepaid at such
Holder's address as it appears on the books of the Warrant Agent [IF OFFERED
DEBT SECURITIES AND WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE--(or on the
register of the Offered Debt Securities prior to the Detachable Date)]] [and]
[or] [with respect to Bearer Warrants, by publication at least twice in a daily
newspaper of general circulation or of circulation within the financial
community in The City of New York and in such other city or cities, if any, in
an official language thereof as may be specified in such Bearer Warrants].
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed, and their respective corporate seal to be hereunto affixed
and attested, all as of the day and year first above written.
AMERICAN GENERAL FINANCE CORPORATION
By ________________________________
[SEAL]
Attest:
____________________________
[NAME OF WARRANT AGENT]
By ________________________________
[SEAL]
Attest:
____________________________
[Assistant] Secretary
-17-
EXHIBIT A
[FORM OF WARRANT CERTIFICATE IN REGISTERED FORM]
[FACE OF WARRANT CERTIFICATE]
FORM OF LEGEND IF OFFERED [Prior to ____________________, this
DEBT SECURITIES WITH Warrant Certificate may be transferred
WARRANTS WHICH ARE NOT or exchanged if and only if the [Title
IMMEDIATELY DETACHABLE: of Offered Debt Security] to which it
was initially attached is so transferred
or exchanged.]
FORM OF LEGEND IF [Prior to ____________________, Warrants
WARRANTS ARE NOT evidenced by this Warrant Certificate
IMMEDIATELY EXERCISABLE: cannot be exercised.]
EXERCISABLE ONLY IF AUTHENTICATED BY THE WARRANT
AGENT AS PROVIDED HEREIN.
VOID AFTER THE CLOSE OF BUSINESS ON _______________, 19__
AMERICAN GENERAL FINANCE CORPORATION
WARRANT CERTIFICATE REPRESENTING
WARRANTS TO PURCHASE
[TITLE OF WARRANT DEBT SECURITIES]
AS DESCRIBED HEREIN.
No. _____ Warrants
This certifies that ____________________ or registered assigns is
the registered owner of the above indicated number of Warrants, each Warrant
entitling such registered owner to purchase, at any time [after the close of
business on _______________, 19__, and] on or before the close of business on
_______________, 19__, ________ principal amount of [Title of Warrant Debt
Securities] (the "Warrant Debt Securities") of American General Finance
Corporation (the "Company"), issued or to be issued under the Indenture (as
hereinafter defined), on the following basis.(1) [During the period from
_______________, 19__, through and including _______________, 19__, each Warrant
shall entitle the Holder thereof, subject to the provisions set forth herein and
in the Warrant Agreement (as hereinafter defined), to purchase from the Company
the principal amount of Warrant Debt Securities stated
(1) Complete and modify the following provisions as appropriate
to reflect the terms of the Warrants and the Warrant Debt
Securities.
A-1
above in this Warrant Certificate at the exercise price of _____% of the
principal amount thereof [plus accrued amortization, if any, of the original
issue discount of the Warrant Debt Securities] [plus accrued interest, if any,
from the most recent date from which interest shall have been paid on the
Warrant Debt Securities or, if no interest shall have been paid on the Warrant
Debt Securities, from _______________, 19__];] [D]uring the period from
_______________, 19__ through and including _______________, 19__, each Warrant
shall entitle the Holder thereof, subject to the provisions set forth herein and
in the Warrant Agreement, to purchase from the Company the principal amount of
Warrant Debt Securities stated above in this Warrant Certificate at the exercise
price of _____% of the principal amount thereof [plus accrued amortization, if
any, of the original issue discount of the Warrant Debt Securities] [plus
accrued interest, if any, from the most recent date from which interest shall
have been paid on the Warrant Debt Securities or, if no interest shall have been
paid on the Warrant Debt Securities, from _______________, 19__]. [[In each
case,] [T]he original issue discount (__________ for each [[$1,000] [foreign
currency amount] principal amount] [foreign currency unit amount] of Warrant
Debt Securities) will be amortized at a _____% annual rate, computed on a[n]
[semi-]annual basis [, using a 360-day year consisting of twelve 30-day
months.]] Such exercise price of each Warrant is hereinafter referred to as the
"Exercise Price." The Holder of this Warrant Certificate may exercise the
Warrants evidenced hereby, in whole or in part, by (i) providing certain
information set forth on the back hereof; (ii) paying [in lawful money of the
United States of America] [in specified applicable currency or units] [in cash
or by certified check or official bank check in New York Clearing House or
similar next day funds] [by bank wire transfer in immediately available funds]
[by surrender of the [specified aggregate principal amount of identified
securities]], the Exercise Price for each Warrant exercised, to [name of Warrant
Agent], or its successor as warrant agent (the "Warrant Agent"), at the
corporate trust office of the Warrant Agent [or at _______________,], at the
addresses specified on the reverse hereof; and (iii) complying with the
conditions set forth herein and in the Warrant Agreement, which conditions
include receipt within five business days of such [payment] [wire transfer] by
the Warrant Agent of this Warrant Certificate, with the Form of Exercise set
forth hereon duly completed and executed, at the addresses specified on the
reverse hereof. This Warrant Certificate may be exercised only for the purchase
of Warrant Debt Securities in [the principal amount of $1,000] [specified
foreign currency amount] [specified foreign currency unit amount] or any
integral multiple thereof.
The term "Holder" as used herein shall mean [IF OFFERED DEBT
SECURITIES AND WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE--, prior to
_______________, 19__ (the "Detachable Date"), the registered owner of the
Company's [title of Offered Debt Securities] to which this Warrant Certificate
was initially attached (the "Offered Debt Security"), and after such Detachable
A-2
Date,] the person in whose name at the time this Warrant Certificate shall be
registered upon the books to be maintained by the Warrant Agent for that purpose
pursuant to Section 3.01 of the Warrant Agreement (as hereinafter defined).
Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase Warrant Debt Securities in registered
[or] [bearer] form [provided, however, that Warrant Debt Securities in bearer
form will only be delivered outside the United States and only upon satisfaction
of the conditions contained in the Warrant Agreement]. Upon any exercise of
fewer than all of the Warrants evidenced by this Warrant Certificate, there
shall be issued to the registered owner hereof a new Warrant Certificate in
registered form evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with
the Warrant Agreement dated as of _______________, 19__ (the "Warrant
Agreement"), between the Company and the Warrant Agent and is subject to the
terms and provisions contained in the Warrant Agreement, to all of which terms
and provisions the Holder of this Warrant Certificate consents by acceptance
hereof. Copies of the Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent [and at ____________________].
The Warrant Debt Securities to be issued and delivered upon the
exercise of Warrants evidenced by this Warrant Certificate will be issued under
and in accordance with an Indenture, dated as of October 1, 1994 (the
"Indenture"), between the Company and The Chase Manhattan Bank (National
Association), a national banking association, as trustee (such trustee, and any
successors to such trustee, being hereinafter referred to as the "Trustee"), and
will be subject to the terms and provisions contained in the Warrant Debt
Securities and in the Indenture. Copies of the Indenture, including the form of
the Warrant Debt Securities, are on file at the corporate trust office of the
Trustee [and at ____________________].
[IF OFFERED DEBT SECURITIES AND WARRANTS WHICH ARE NOT
IMMEDIATELY DETACHABLE--Prior to the Detachable Date, this Warrant Certificate
may be exchanged or transferred only together with the Offered Debt Security to
which this Warrant Certificate was initially attached, and only for the purpose
of effecting, or in conjunction with, an exchange or transfer of such Offered
Debt Security. Additionally, on or prior to the Detachable Date, each transfer
or exchange of such Offered Debt Security on the register of the Offered Debt
Securities shall operate also to transfer or exchange this Warrant Certificate.
After the Detachable Date, this] [IF OFFERED DEBT SECURITIES AND WARRANTS WHICH
ARE IMMEDIATELY DETACHABLE OR WARRANTS ALONE --This] Warrant Certificate, and
all rights hereunder, may be transferred in whole or in part when surrendered at
the corporate trust office of the Warrant Agent [or ____________________] by the
registered owner or
A-3
his assigns, in person or by an attorney duly authorized in writing, in the
manner and subject to the limitations provided in the Warrant Agreement].
[IF OFFERED DEBT SECURITIES AND WARRANTS WHICH ARE NOT
IMMEDIATELY DETACHABLE--Except as provided in the immediately preceding
paragraph, after] [IF OFFERED DEBT SECURITIES AND WARRANTS WHICH ARE IMMEDIATELY
DETACHABLE OR WARRANTS ALONE --After] authentication by the Warrant Agent and
prior to the expiration of this Warrant Certificate, this Warrant Certificate
may be exchanged at the corporate trust office of the Warrant Agent [or at
____________________] for Warrant Certificates in [registered] [or] [bearer]
form representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the Holder hereof to
any of the rights of a holder of the Warrant Debt Securities, including, without
limitation, the right to receive payments of principal of (and premium, if any)
or interest, if any, or Additional Amounts (as defined in the Indenture), if
any, on the Warrant Debt Securities or to enforce any of the covenants of the
Indenture.
Reference is hereby made to the further provisions of this
Warrant Certificate set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
This Warrant Certificate shall not be valid or obligatory for any
purpose until authenticated by the Warrant Agent.
A-4
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be duly executed under its corporate seal.
Dated:
AMERICAN GENERAL FINANCE CORPORATION
[SEAL] By _________________________________
Attest: _______________________
Certificate of Authentication
This is one of the Warrant Certificates referred to in the
within-mentioned Warrant Agreement.
___________________________
As Warrant Agent
By ___________________________
Authorized signature
A-5
[REVERSE] [FORM OF WARRANT CERTIFICATE IN REGISTERED FORM]
(Instructions for Exercise of Warrants)
To exercise any Warrants evidenced hereby, the Holder of this
Warrant Certificate must pay in [United States Dollars] [applicable currency or
units] [in cash or by certified check or official bank check in New York
Clearing House or similar next day funds] [or by bank wire transfer in
immediately available funds] [by surrender of the [specified aggregate amount of
identified securities]], the Exercise Price in full for each of the Warrants
exercised, to ____________________________________, Corporate Trust Department,
____________________, Attn: ____________________ [or ____________________],
which payment should specify the name of the Holder of this Warrant Certificate
and the number of Warrants exercised by such Holder. In addition, the Holder of
this Warrant Certificate should complete the information required below and
present in person or mail by registered mail this Warrant Certificate to the
Warrant Agent at the addresses set forth below. This Warrant Certificate,
completed and duly executed, must be received by the Warrant Agent within five
business days of the [payment] [wire transfer]. [If the undersigned is
requesting delivery of Warrant Debt Securities (as hereinafter defined) or of
the unexercised portion of the Warrant Certificate in bearer form, the person
entitled to physical delivery of such Warrant Debt Securities or Warrant
Certificate, as the case may be, will be required to deliver a certificate
(copies of which may be obtained from the Warrant Agent [or _______________]
certifying that such Warrant Debt Securities or Warrant Certificate, as the case
may be, are not being acquired by or on behalf of a United States Person (as
defined in the certificate) or for resale to a United States Person unless such
United States Person is a qualified financial institution as defined under
United States tax laws and regulations.]
[FORM OF EXERCISE]
(To be executed upon exercise of Warrants.)
The undersigned hereby irrevocably elects to exercise __________
Warrants, represented by this Warrant Certificate, to purchase __________
principal amount of the [Title of Warrant Debt Securities] (the "Warrant Debt
Securities") of American General Finance Corporation and represents that he has
tendered payment for such Warrant Debt Securities in [United States Dollars]
[applicable currency or units] [in cash or by certified check or official bank
check in New York Clearing House or similar next day funds [or by bank wire
transfer in immediately available funds]] [by surrender herewith of the
[specified aggregate amount of identified securities]] to the order of American
General Finance Corporation, c/o ____________________, in the amount of
____________________ in accordance with the terms hereof. The undersigned
requests that said principal amount of Warrant Debt Securities be in [fully
A-6
registered form] [ bearer form] in the authorized denominations, [registered in
such names] and delivered, all as specified in accordance with the instructions
set forth below.
If said principal amount of Warrant Debt Securities is less than
all of the Warrant Debt Securities purchasable hereunder, the undersigned
requests that a new Warrant Certificate representing the remaining balance of
the Warrants evidenced hereby be issued [in fully registered form] [in bearer
form] and delivered to the undersigned unless otherwise specified in the
instructions below.
Dated:
__________________________ Name _____________________________
(Insert Social Security or (Please Print)
Other Identifying Number
of Holder) Address ___________________________
__________________________
Signature _________________________
(Signature must conform in all
respects to name of Holder as
specified on the face of this Warrant
Certificate and must bear a signature
guarantee by a bank, trust company or
member broker of the New York, Midwest
or Pacific Stock Exchange.)
Signature Guaranteed:
____________________________
This Warrant may be exercised at the following addresses:
By hand at _________________________
_________________________
_________________________
By mail at _________________________
_________________________
_________________________
(Instructions as to form and delivery of Warrant Debt Securities and, if
applicable, Warrant Certificates evidencing unexercised Warrants):
A-7
[FORM OF ASSIGNMENT OF REGISTERED WARRANT]
(TO BE EXECUTED IF HOLDER DESIRES TO TRANSFER
THE WARRANT CERTIFICATE)
FOR VALUE RECEIVED _________________________ hereby
sells, assigns and transfers unto
_________________________________________________________________
_________________________________________________________________
(Please print name, address (including zip code) and social
security or other identifying number)
the right represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint , Attorney, to transfer said Warrant
Certificate on the books of the Warrant Agent with full power of substitution.
Dated:
___________________________________
Signature
(Signature must conform in all
respects to name of Holder as
specified on the face of this Warrant
Certificate and must bear a signature
guarantee by a bank, trust company or
member broker of the New York, Midwest
or Pacific Stock Exchange)
Signature Guaranteed:
____________________________
A-8
EXHIBIT B
[DELETE THIS EXHIBIT IF ONLY REGISTERED WARRANTS ARE TO BE ISSUED]
FORM OF WARRANT CERTIFICATE IN BEARER FORM
[NOT APPLICABLE]
B-1
[DELETE THIS EXHIBIT IF ONLY REGISTERED WARRANTS
ARE TO BE ISSUED]
EXHIBIT C
FORM OF CERTIFICATE FOR DELIVERY OF BEARER WARRANTS OR WARRANT
DEBT SECURITIES IN BEARER FORM
[NOT APPLICABLE]
C-1
EXHIBIT 12
AMERICAN GENERAL FINANCE CORPORATION AND SUBSIDIARIES
RATIO OF EARNINGS TO FIXED CHARGES
(dollars in thousands)
<TABLE>
<CAPTION>
Nine
Months
Ended Years Ended December 31,
Sept. 30, ---------------------------------------------------------
1994 1993 1992 1991 1990 1989
--------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS:
Net income (1) ............ $ 172,649 $ 202,219 $ 160,171 $ 135,837 $ 122,947 $ 100,398
Interest expense .......... 292,882 368,986 378,679 375,349 389,203 372,526
Implicit interest in rents. 9,097 10,887 8,643 7,371 7,193 7,299
Income taxes .............. 104,149 124,884 99,192 82,458 72,809 64,159
--------- --------- --------- --------- --------- ---------
Total earnings .............. $ 578,777 $ 706,976 $ 646,685 $ 601,015 $ 592,152 $ 544,382
========= ========= ========= ========= ========= =========
FIXED CHARGES:
Interest expense .......... $ 292,882 $ 368,986 $ 378,679 $ 375,349 $ 389,203 $ 372,526
Implicit interest in rents. 9,097 10,887 8,643 7,371 7,193 7,299
--------- --------- --------- --------- --------- ---------
Total fixed charges ......... $ 301,979 $ 379,873 $ 387,322 $ 382,720 $ 396,396 $ 379,825
========= ========= ========= ========= ========= =========
RATIO OF EARNINGS TO
FIXED CHARGES .............. 1.9 1.9 1.7 1.6 1.5 1.4
<FN>
(1) Before cumulative effect of accounting changes.
</FN>
</TABLE>
EXHIBIT 23(b)
Consent of Independent Auditors
We consent to the references to our firm under the captions "Incorporation by
Reference," "Selected Financial Information," and "Experts" in Amendment No. 1
to the Registration Statement (Form S-3 No. 33-55803) and related Prospectus of
American General Finance Corporation for the registration of $2,000,000,000 of
Debt Securities and Warrants to purchase Debt Securities and to the
incorporation by reference therein of our report dated February 14, 1994, with
respect to the consolidated financial statements of American General Finance
Corporation included in its Annual Report (Form 10-K) for the year ended
December 31, 1993, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Nashville, Tennessee
December 8, 1994
