AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 6, 1994
REGISTRATION NO. 33-..........
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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/
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
<S> <C> <C> <C> <C>
PROPOSED
MAXIMUM PROPOSED
TITLE OF EACH AMOUNT OFFERING MAXIMUM AMOUNT OF
CLASS OF SECURITIES TO BE PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PER UNIT(2) OFFERING PRICE(2) FEE
------------------- -------------- ----------- ----------------- ------------
Debt Securities and Warrants to
purchase Debt Securities----------- $2,000,000,000 100% $2,000,000,000 $400,000
============== =========== ================= ============
(1) Amount to be registered is the principal amount of Debt Securities.
(2) Exclusive of accrued interest, if any. Estimated solely for the purpose of
calculating the registration fee in accordance with Rule 457(g).
</TABLE>
-------------------
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.
<PAGE>
SUBJECT TO COMPLETION, DATED OCTOBER 6, 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 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) and June 30,
1994; and
(c) the Company's Current Reports on Form 8-K dated February 1, 1994,
April 27, 1994 and July 26, 1994 (which relate to earnings releases of the
Company); and March 22, 1994, April 6, 1994, May 17, 1994, June 8, 1994 and
September 26, 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 June 30, 1994, the Company and its subsidiaries had over 1,200 offices in
38 states, Puerto Rico and the Virgin Islands. Total finance receivables, net of
unearned finance charges, at June 30, 1994 were $6.1 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
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:
SIX MONTHS YEARS ENDED DECEMBER 31,
ENDED JUNE 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, and (e) refundings or extensions of any permitted
Mortgage. (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 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
7
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 Indentures 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 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
8
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 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
9
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.
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
10
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 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)
11
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 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
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following are the estimated expenses to be incurred by the registrant in
connection with the offering described in this Registration Statement (other
than underwriting discount and commissions).
SEC registration fee----------------- $ 400,000
NASD registration fee---------------- 30,500
Printing and engraving--------------- 80,000
Legal fees and expenses-------------- 110,000
Blue Sky qualification fees and
expenses----------------------------- 32,000
Accounting fees and expenses--------- 125,000
Trustee's fees and expenses---------- 80,000
Rating agency fees------------------- 600,000
Miscellaneous------------------------ 17,500
-----------
Total------------------------ $ 1,475,000
===========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Chapter 37 of the Indiana Business Corporation Law empowers a corporation to
indemnify any individual who was or is a party or is threatened to be made a
party to any threatened, pending, or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative and whether formal or
informal, by reason of the fact that he is or was a director, officer, employee,
or agent of the corporation or, while a director of a corporation, is or was
serving at the request of the corporation as a director, officer, partner,
trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan, or other enterprise,
whether for profit or not, against reasonable expenses (including counsel fees),
judgments, fines (including any excise tax assessed with respect to an employee
benefit plan), penalties and amounts paid in settlement incurred by him in
connection with such action, suit or proceeding (i) if he acted in good faith,
and (ii) in the case of conduct in his official capacity with the corporation,
if he reasonably believed his conduct was in the best interests of the
corporation or, in all other cases, if he reasonably believed his conduct was at
least not opposed to the best interests of the corporation (or with respect to
an employee benefit plan, if he reasonably believed his conduct was in the
interests of the participants in and beneficiaries of the plan), and (iii) with
respect to any criminal action or proceeding, if he had reasonable cause to
believe his conduct was lawful or no reasonable cause to believe his conduct was
unlawful.
Chapter 37 further provides that a corporation shall, unless limited by its
articles of incorporation, indemnify a director or officer who was wholly
successful, on the merits or otherwise, in the defense of any action, suit or
proceeding to which he was a party because he is or was a director or officer of
the corporation against reasonable expenses incurred by him in connection
therewith. Chapter 37 expressly states that the indemnification thereby provided
does not exclude any other rights to indemnification to which a person may be
entitled. Chapter 37 empowers a corporation to purchase and maintain insurance
on behalf of an individual who is or was a director, officer, employee, or agent
of the corporation, or who, while a director, officer, employee, or agent of the
corporation, is or was serving at the request of the corporation as a director,
officer, partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan, or other
enterprise, against liability asserted against or incurred by the individual in
that capacity or arising from the individual's status as a director, officer,
employee, or
II-1
agent, whether or not the corporation would have power to indemnify the
individual against the same liability under Chapter 37. Finally, Chapter 37
empowers a corporation, under certain circumstances, to advance to an individual
expenses incurred in connection with an action, suit or proceeding prior to the
final disposition thereof; and empowers a court of competent jurisdiction, in
certain cases, to order indemnification of a director or officer irrespective of
whether the director or officer met the standards of conduct set forth above.
Section 7.8 of the registrant's Restated Articles of Incorporation provides
that, to the extent not inconsistent with applicable law, every person who is or
was a director, officer, employee or agent of the registrant or is or was
serving at the request of the registrant as a director, officer, employee, agent
or fiduciary of another foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan or other organization or entity, whether
for profit or not, shall be indemnified against all liability and reasonable
expense that may be incurred by him in connection with or resulting from any
claim by reason of (i) his being or having been such a person, or (ii) any
action taken or not taken by him in any such capacity, (a) if such person is
Wholly Successful with respect to the claim or (b) if not Wholly Successful,
then if such person is determined to have acted in good faith, in what he
reasonably believed to be the best interests of the registrant or at least not
opposed to its best interests and, in addition, with respect to a criminal
claim, is determined to have had reasonable cause to believe that his conduct
was lawful or had no reasonable cause to believe his conduct was unlawful.
Section 7.8 defines "Wholly Successful" to mean (i) termination of any claim
against the person in question without any finding of liability or guilt against
him, (ii) approval by a court, with knowledge of the indemnity provided in
Section 7.8, of a settlement of any claim, or (iii) the expiration of a
reasonable period of time after the making or threatened making of any claim
without the institution of the same, without any payment or promise made to
induce a settlement.
Section 7.8 provides that the rights of indemnification provided therein are
in addition to any rights to which any such director, officer, employee or agent
may otherwise be entitled. Additionally, Section 7.8 authorizes the Board of
Directors of the registrant (i) to approve indemnification of any such person to
the full extent permitted by the provisions of applicable law at the time in
effect, and (ii) to authorize the registrant to purchase and maintain insurance
on behalf of any such person against any liability asserted against him and
incurred by him, whether or not the registrant would have the power to indemnify
him against such liability. Section 7.8 permits the Board of Directors to
authorize advancement of expenses incurred by such a person prior to the final
disposition of a claim upon receipt of an undertaking by or on behalf of the
person to repay such amount unless he is determined to be entitled to
indemnification. The provisions of Section 7.8 are applicable to all claims made
or commenced after the adoption of that section, whether arising from acts or
omissions to act occurring before or after the adoption thereof.
Article X of the registrant's By-Laws provides that the registrant shall
indemnify any person who was or is a named defendant or respondent or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, and any inquiry or investigation that could lead to such an
action, suit or proceeding, by reason of the fact that he is or was a director,
officer or employee of the registrant or is or was serving at the request of the
registrant as a director, officer, partner, venturer, proprietor, trustee,
employee or similar functionary of another foreign or domestic corporation or
non-profit corporation, partnership, joint venture, sole proprietorship, trust,
employee benefit plan or other enterprise, against judgments, penalties
(including excise and similar taxes), fines, amounts paid in settlement and
reasonable expenses (including court costs and attorneys' fees) actually
incurred by him in connection with such action, suit or proceeding, if he acted
in good faith and in a manner he reasonably believed (i) in the case of conduct
in his official capacity as a director of the registrant, to be in the best
interests of the registrant and (ii) in all other cases, to be not opposed to
the best interests of the registrant; and, with respect to any criminal action
or proceeding, if he had no reasonable cause to believe his conduct was
unlawful. In connection with any action, suit or proceeding in which the person
shall have been adjudged to be liable to the registrant or liable on the basis
that personal benefit was improperly received by him, whether or not the benefit
resulted
II-2
from an action taken in the person's official capacity as a director or officer,
Article X (i) limits the indemnity to reasonable expenses (including court costs
or attorneys' fees) actually incurred in connection with such proceeding; and
(ii) prohibits the indemnity if the person is found liable for willful or
intentional misconduct in the performance of his duty to the registrant. Article
X further provides that the registrant shall indemnify any such person who has
been wholly successful, on the merits or otherwise, in defense of any such
action, suit or proceeding against reasonable expenses (including court costs
and attorneys' fees) actually incurred by him.
Article X also (1) requires the registrant to advance reasonable expenses
prior to the final disposition of the action, suit or proceeding under certain
circumstances, (2) states that the indemnification provided by Article X is (i)
nonexclusive and (ii) does not limit the power of the registrant to indemnify
and to advance expenses, and (3) empowers the registrant to purchase and
maintain insurance on behalf of any such person against any liability asserted
against him and incurred by him in such a capacity or arising out of his status
as such a person, whether or not the registrant would have the power to
indemnify him against that liability.
Reference is made to the final Undertaking set forth in Item 17.
Reference is also made to Section 6 of the form of Underwriting Agreement, a
copy of which is filed as Exhibit 1 hereto, for information concerning
indemnification of the registrant and its directors, officers and controlling
persons by the Underwriters.
The registrant carries insurance covering directors and officers against
certain liabilities.
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.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; and
II-3
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that the undertakings set forth in clauses (i) and (ii) of
this paragraph shall not apply if the information required to be included in
such post-effective amendment is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers, and controlling persons of the
registrant pursuant to the provisions set forth in Item 15, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer, or controlling person of the registrant
in the successful defense of any action, suit, or proceeding) is asserted by
such director, officer, or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-4
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 5TH DAY OF
OCTOBER, 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 OCTOBER 5, 1994.
SIGNATURE TITLE
President 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)
DAVID C. SEELEY* Director
(DAVID C. SEELEY)
JAMES R. TUERFF* Director
(JAMES R. TUERFF)
PETER V. TUTERS* Director
(PETER V. TUTERS)
*By GARY M. SMITH
(GARY M. SMITH, ATTORNEY-IN-FACT)
II-5
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-________)
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 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
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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 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
-3-
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;
(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 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 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
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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 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
-6-
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 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 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
-7-
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
(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
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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;
(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
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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 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
-10-
(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 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
-11-
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;
(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
-12-
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 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
-13-
alleged untrue statement or omission or alleged omission 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 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 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
-14-
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 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
-15-
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 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)
-16-
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.
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
-17-
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.
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.
-18-
<PAGE>
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-_______________) 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 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)
-1-
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]
SECURITIES: [Notes] [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 [By certified or official bank check or
SPECIFIED FUNDS FOR checks, payable to the order of the
PAYMENT OF PURCHASE Company in [New York] Clearing House
PRICE: 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:
NAMES AND ADDRESSES Designated Representatives:
OF REPRESENTATIVES:
Address for Notices, etc.:
[SECURITIES Debt Securities to be listed on the [New
EXCHANGE: 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 ______________________________.]
-4-
MATURITY:
INTEREST RATE: [_____%] [Zero Coupon] [See Floating
Rate Provisions]
INTEREST PAYMENT [months and dates]
DATES:
REDEMPTION [No provisions for redemption]
PROVISIONS:
[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.]
[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 [None] [Debt Securities are repayable on
PROVISIONS: ________, ___ [insert date and year[s]],
at the option of the holder, at their
principal amount with accrued interest.]
-5-
SINKING FUND [No sinking fund provisions]
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 Debt Securities are repayable on
PROVISIONS: ______________, ____________ [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
PROVISIONS: _____% through ______________ [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:
Interest Payment Dates:
Redemption Provisions:
Repayment Provisions:
Sinking Fund Provisions:
[Other Provisions:]]
-8-
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 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 a period of corresponding length
immediately preceding the date of the Interim Financials or of the
Recent Balance Sheet, as the case may be, that commences with the
beginning of a month and does not extend beyond the date of the
Interim Financials or of the Recent Balance Sheet, as the case may
be, 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 material decrease, as
compared with a period of corresponding length immediately
preceding the date of the Interim Financials or of the Recent
Balance Sheet, as the case may be, that commences with the
beginning of a month and does not extend beyond the date of the
Interim Financials or of the Recent Balance Sheet, as the case may
be, 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 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.
-2-
<PAGE>
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 this contract
is acceptable to the Company, it is requested that the Company sign the
form of acceptance below and mail or
-2-
<PAGE>
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)
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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)
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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 ............................... 4
Consolidated Net Worth .......................................... 4
Corporate Trust Office .......................................... 4
corporation ..................................................... 4
coupon .......................................................... 4
Defaulted Interest .............................................. 4
Depository ...................................................... 4
Dollars or $ .................................................... 4
ECU ............................................................. 5
European Community .............................................. 5
Event of Default ................................................ 5
Foreign Currency ................................................ 5
Government Obligations .......................................... 5
Holder .......................................................... 5
Indebtedness .................................................... 6
Indenture ....................................................... 6
Indexed Security ................................................ 6
interest ........................................................ 6
Interest Payment Date ........................................... 6
Judgment Currency ............................................... 6
Maturity ........................................................ 6
Mortgage ........................................................ 7
New York Banking Day ............................................ 7
New York Facility ............................................... 7
Officers' Certificate ........................................... 7
Opinion of Counsel .............................................. 7
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Original Issue Discount Security ................................ 7
Outstanding ..................................................... 7
Paying Agent .................................................... 9
Person .......................................................... 9
Place of Payment ................................................ 9
Predecessor Security ............................................ 9
Redemption Date ................................................. 9
Redemption Price ................................................ 9
Registered Security ............................................. 10
Regular Record Date ............................................. 10
Required Currency ............................................... 10
Responsible Officer ............................................. 10
Security or Securities .......................................... 10
Security Register and Security Registrar ........................ 10
Subsidiary ...................................................... 10
Special Record Date ............................................. 10
Stated Maturity ................................................. 10
Trust Indenture Act ............................................. 11
Trustee ......................................................... 11
United States ................................................... 11
United States Alien ............................................. 11
U.S. Depository or Depository ................................... 11
SECTION 102. Compliance Certificates and Opinions ........................ 12
SECTION 103. Form of Documents Delivered to Trustee ...................... 12
SECTION 104. Acts of Holders ............................................. 13
SECTION 105. Notices, etc., to Trustee and Company ....................... 16
SECTION 106. Notice to Holders of Securities; Waiver ..................... 16
SECTION 107. Language of Notices, etc .................................... 17
SECTION 108. Conflict with Trust Indenture Act ........................... 18
SECTION 109. Effect of Headings and Table of Contents .................... 18
SECTION 110. Successors and Assigns ...................................... 18
SECTION 111. Separability Clause ......................................... 18
SECTION 112. Benefits of Indenture ....................................... 18
SECTION 113. Governing Law ............................................... 18
SECTION 114. Legal Holidays .............................................. 18
SECTION 115. Certificate of Firm of Independent Public
Accountants Conclusive ..................................... 19
SECTION 116. Judgment Currency ........................................... 19
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ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms of Securities ......................................... 20
SECTION 202. Form of Trustee's Certificate of
Authentication ............................................. 20
SECTION 203. Securities in Global Form ................................... 21
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series ........................ 21
SECTION 302. Currency; Denominations ..................................... 26
SECTION 303. Execution, Authentication, Delivery and Dating .............. 26
SECTION 304. Temporary Securities ........................................ 28
SECTION 305. Registration, Registration of Transfer and
Exchange ................................................... 29
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities ................................................. 33
SECTION 307. Payment of Interest and Certain Additional
Amounts; Rights Preserved .................................. 35
SECTION 308. Persons Deemed Owners ....................................... 37
SECTION 309. Cancellation ................................................ 38
SECTION 310. Computation of Interest ..................................... 38
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture ..................... 38
SECTION 402. Application of Trust Money .................................. 41
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default ........................................... 42
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SECTION 502. Acceleration of Maturity; Rescission
and Annulment .............................................. 44
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee ..................................... 45
SECTION 504. Trustee May File Proofs of Claim ............................ 46
SECTION 505 Trustee May Enforce Claims without
Possession of Securities or Coupons ....................... 47
SECTION 506. Application of Money Collected .............................. 47
SECTION 507. Limitation on Suits ......................................... 48
SECTION 508. Unconditional Right of Holders to Receive
Principal and any Premium, Interest and
Additional Amounts ......................................... 49
SECTION 509. Restoration of Rights and Remedies .......................... 49
SECTION 510. Rights and Remedies Cumulative .............................. 49
SECTION 511. Delay or Omission Not Waiver ................................ 49
SECTION 512. Control by Holders of Securities ............................ 50
SECTION 513. Waiver of Past Defaults ..................................... 50
SECTION 514. Undertaking for Costs ....................................... 50
SECTION 515. Waiver of Stay or Extension Laws ............................ 51
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities ......................... 51
SECTION 602. Notice of Defaults .......................................... 53
SECTION 603. Certain Rights of Trustee ................................... 53
SECTION 604. Not Responsible for Recitals or Issuance
of Securities .............................................. 54
SECTION 605. May Hold Securities ......................................... 55
SECTION 606. Money Held in Trust ......................................... 55
SECTION 607. Compensation and Reimbursement .............................. 55
SECTION 608. Disqualifications; Conflicting Interests .................... 56
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SECTION 609. Corporate Trustee Required; Eligibility ..................... 56
SECTION 610. Resignation and Removal; Appointment of
Successor .................................................. 57
SECTION 611. Acceptance of Appointment by Successor ...................... 59
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business ..................................... 60
SECTION 613. Appointment of Authenticating Agent ......................... 61
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders of Registered Securities ........................ 63
SECTION 702. Preservation of Information; Communications
to Holders ................................................. 63
SECTION 703. Reports by Trustee .......................................... 64
SECTION 704. Reports by Company .......................................... 64
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and
Sales and Conveyances Permitted Subject
to Certain Conditions ..................................... 65
SECTION 802. Rights and Duties of Successor Corporation .................. 65
SECTION 803. Officers' Certificate and Opinion of Counsel ................ 66
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of
Holders .................................................... 66
SECTION 902. Supplemental Indentures with Consent
of Holders ................................................. 70
SECTION 903. Execution of Supplemental Indentures ........................ 72
SECTION 904. Effect of Supplemental Indentures ........................... 72
SECTION 905. Conformity with Trust Indenture Act ......................... 72
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SECTION 906. Reference in Securities to Supplemental
Indentures ................................................. 72
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal and any Premium,
Interest and Additional Amounts ........................... 73
SECTION 1002. Maintenance of Office or Agency ............................ 73
SECTION 1003. Money for Securities Payments to be Held
in Trust .................................................. 74
SECTION 1004. Additional Amounts ......................................... 76
SECTION 1005. Payment of Taxes and Other Claims .......................... 77
SECTION 1006. Maintenance of Properties .................................. 77
SECTION 1007. Statement as to Compliance; Notice of
Certain Defaults .......................................... 78
SECTION 1008. Corporate Existence ........................................ 78
SECTION 1009. Limitation on Liens ........................................ 78
SECTION 1010. Waiver of Certain Covenants ................................ 82
SECTION 1011. Defeasance of Certain Obligations .......................... 82
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article ................................... 84
SECTION 1102. Election to Redeem; Notice to Trustee ...................... 84
SECTION 1103. Selection by Trustee of Securities
to be Redeemed ............................................ 85
SECTION 1104. Notice of Redemption ....................................... 85
SECTION 1105. Deposit of Redemption Price ................................ 87
SECTION 1106. Securities Payable on Redemption Date ...................... 87
SECTION 1107. Securities Redeemed in Part ................................ 88
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article ................................... 88
SECTION 1202. Satisfaction of Sinking Fund Payments
with Securities ........................................... 89
SECTION 1203. Redemption of Securities for Sinking Fund .................. 89
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article ................................... 90
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called .................. 90
SECTION 1402. Call, Notice and Place of Meetings ......................... 91
SECTION 1403. Persons Entitled to Vote at Meetings ....................... 91
SECTION 1404. Quorum; Action ............................................. 92
SECTION 1405. Determination of Voting Rights; Conduct
and Adjournment of Meetings ............................... 93
SECTION 1406. Counting Votes and Recording Action
of Meetings .............................................. 94
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 1501. Securities in Foreign Currencies ........................... 94
TESTIMONIUM ............................................................... 96
SIGNATURE AND SEALS ....................................................... 96
ACKNOWLEDGMENTS ........................................................... 97
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<PAGE>
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;
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(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
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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 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
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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 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,
________________________, 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.
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"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.
"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.
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"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.
"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.
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"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.
"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
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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 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
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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 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.
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"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 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.
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"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.
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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 satisfied.
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
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or Opinion of Counsel or representations by counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion
of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture 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.
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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 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.
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(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
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.
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(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
(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
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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 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.
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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.
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
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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
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.
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<PAGE>
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.
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:
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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.
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
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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
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Interest Payment Date therefor prior to the exchange, if any, of
such temporary Bearer Security for 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
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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 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
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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
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.
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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 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,
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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 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
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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 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
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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 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
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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 surrendered at any such office or agency in exchange for a
Registered Security of the same series
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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'
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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 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.
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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.
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
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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 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.
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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.
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
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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 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
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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 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
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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 execute such
instruments as may be requested by the Company acknowledging satisfaction
and discharge of this Indenture, when
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(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
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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 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
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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 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
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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.
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
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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 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
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(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 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
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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.
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
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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 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
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(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.
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
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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;
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.
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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.
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
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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 not less than a majority in principal amount of
the Outstanding Securities of any series may on behalf of the Holders of
all the Securities of such series 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.
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
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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
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(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
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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.
(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
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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;
(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
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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 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
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(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.
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.
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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 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
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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 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.
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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
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
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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
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same effect as if such successor Trustee had itself authenticated such
Securities.
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.
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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 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
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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.
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
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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 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
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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.
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
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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.
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
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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
(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
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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;
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
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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;
(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
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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:
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any
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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
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provision, shall be deemed not to affect the rights under this Indenture
of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders 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.
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ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL AND ANY PREMIUM, INTEREST
AND ADDITIONAL AMOUNTS.
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
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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 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
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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.
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,
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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 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
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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 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
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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.
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
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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 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
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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
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of business; or deposits or pledges to obtain the release of
any such liens;
(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; and
(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.
(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
(2) an Opinion of Counsel to the effect that
such covenant has been complied with, and
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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
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(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
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
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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 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.
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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.
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;
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(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;
(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, 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.
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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 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
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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 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
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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 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
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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.
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.
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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 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.
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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
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Holders of such specified percentage in principal amount of the
Outstanding Securities of that series.
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
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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 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
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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.
* * * * *
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.
-95-
<PAGE>
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:
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<PAGE>
STATE OF INDIANA: )
)SS:
COUNTY OF VANDERBURGH: )
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:
COUNTY OF NEW YORK: )
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
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EXHIBIT 4(b)
AMERICAN GENERAL FINANCE CORPORATION
and
As Warrant Agent
WARRANT AGREEMENT
Dated as of _________________
<PAGE>
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
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-
<PAGE>
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-
<PAGE>
EXHIBIT A
[FORM OF WARRANT CERTIFICATE IN REGISTERED FORM]
[FACE OF WARRANT CERTIFICATE]
FORM OF LEGEND IF OFFERED [Prior to ____________________,
DEBT SECURITIES WITH this Warrant Certificate may be
WARRANTS WHICH ARE NOT transferred or exchanged if and
IMMEDIATELY DETACHABLE: only if the [Title of Offered Debt
Security] to which it was initially
attached is so transferred or
exchanged.]
FORM OF LEGEND IF [Prior to ____________________,
WARRANTS ARE NOT Warrants evidenced by this Warrant
IMMEDIATELY EXERCISABLE: Certificate 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./2 [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
/2. 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 of this 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
A-3
Warrant Agent [or ____________________] by the registered owner or 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
<PAGE>
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
<PAGE>
[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 [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 [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
<PAGE>
[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
<PAGE>
EXHIBIT B
[DELETE THIS EXHIBIT IF ONLY REGISTERED WARRANTS ARE TO BE ISSUED]
FORM OF WARRANT CERTIFICATE IN BEARER FORM
[NOT APPLICABLE]
B-1
<PAGE>
[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
BAKER & DANIELS
300 NORTH MERIDIAN STREET, SUITE 2700
INDIANAPOLIS, INDIANA 46204
October 6, 1994
American General Finance Corporation
601 N.W. Second Street
Evansville, Indiana 47708
Ladies and Gentlemen:
We have acted as special counsel for American General
Finance Corporation, an Indiana corporation (the "Company"), in
connection with the proposed issuance and sale by it of up to
$2,000,000,000 aggregate principal amount of its debt securities
(the "Debt Securities") and/or warrants to purchase Debt
Securities (the "Warrants").
In connection therewith, we have examined the following
documents:
(a) the Company's Registration Statement on Form S-3
relating to the Debt Securities and the Warrants (the
"Registration Statement");
(b) the Indenture, between the Company and The Chase
Manhattan Bank (National Association) ("Chase"), as Trustee,
dated as of October 1, 1994, pursuant to which the Debt
Securities are to be issued, in substantially the form in which
it is to be executed (the "Indenture"); and
(c) the form of Warrant Agreement to be entered into
between the Company and a warrant agent (the "Warrant Agent"), to
be filed as an exhibit to the Registration Statement (the
"Warrant Agreement").
We also have examined such corporate records and documents
of the Company, and have reviewed and considered such questions
of law and fact, as we deemed necessary or appropriate as a basis
for the opinions expressed herein. As to facts relevant to the
opinions expressed herein, we have relied upon certificates,
statements or representations of officers of the Company, public
officials and others, without any independent verification
thereof. The law covered by the opinions expressed herein is
limited to the federal law of the United States and the law of
the State of Indiana.
Based upon and subject to the foregoing, we are of the
opinion that:
1. The Company is existing as a corporation under the laws
of the State of Indiana.
2. When the issuance of a Debt Security has been duly
authorized by the Company as contemplated by the Indenture,
subject to the Indenture having been duly executed and delivered
by the Company and to the terms of such Debt Security being
otherwise in compliance with then applicable law, and when such
Debt Security has been duly executed, authenticated, sold and
delivered in the form approved pursuant to and in accordance with
the terms of the Indenture, the Registration Statement, which
Registration Statement shall have become effective, the
supplement or supplements to the Prospectus constituting a part
thereof and, if applicable, such agreement or agreements as may
have been duly authorized and executed in connection with the
sale of such Debt Security, such Debt Security will constitute a
valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except that
(a) enforcement may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, rearrangement,
receivership, moratorium or other laws and matters of public
policy now or hereafter in effect relating to or affecting
enforcement of creditors' rights and (b) the remedy of specific
performance and injunctive and other forms of equitable relief
may be subject to equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought. To
the extent that the obligations of the Company under such Debt
Security may be dependent upon such matters, we assume for
purposes of this opinion that Chase is a national banking
association at all times duly incorporated, validly existing and
in good standing under the laws of the jurisdiction of its
incorporation with full power and authority to enter into and
perform its obligations under the Indenture, and that the
Indenture will have been, before the issuance and sale of such
Debt Security, duly authorized, executed and delivered by Chase
and will, at such time, constitute the valid and legally binding
obligation of Chase, enforceable against Chase in accordance with
its terms.
3. When the issuance of a Warrant has been duly authorized
by the Company as contemplated by the Warrant Agreement pursuant
to which the Warrant is being issued, subject to such Warrant
Agreement having been duly authorized, executed and delivered by
the Company and to the terms of such Warrant being otherwise in
compliance with then applicable law, and when such Warrant has
been duly executed, authenticated, sold and delivered in the form
approved pursuant to and in accordance with the terms of such
Warrant Agreement, the Registration Statement, which Registration
Statement shall have become effective, the supplement or
supplements to the Prospectus constituting a part thereof and, if
applicable, such agreement or agreements as may have been duly
authorized and executed in connection with the sale of such
Warrant, such Warrant will constitute a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except that (a) enforcement may be
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, rearrangement, receivership, moratorium or other
laws and matters of public policy now or hereafter in effect
relating to or affecting enforcement of creditors' rights and
(b) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses
and to the discretion of the court before which any proceeding
therefor may be brought. To the extent that the obligations of
the Company under such Warrant may be dependent upon such
matters, we assume for purposes of this opinion that the Warrant
Agent under such Warrant Agreement is at all times duly
incorporated, validly existing and in good standing under the
laws of the jurisdiction of its incorporation with full power and
authority to enter into and perform its obligations under such
Warrant Agreement, and that such Warrant Agreement will have
been, before the issuance and sale of such Warrant, duly
authorized, executed and delivered by such Warrant Agent and
will, at such time, constitute the valid and legally binding
obligation of such Warrant Agent, enforceable against such
Warrant Agent in accordance with its terms.
We consent to the filing of this opinion as an exhibit to
the Registration Statement and to the reference to us under the
heading "Legal Opinions" in the Prospectus included in the
Registration Statement. In giving such consent, we do not admit
that we come within the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as
amended, or the rules or regulations of the Securities and
Exchange Commission thereunder.
Yours very truly,
BAKER & DANIELS
EXHIBIT 12
<TABLE>
AMERICAN GENERAL FINANCE CORPORATION AND SUBSIDIARIES
RATIO OF EARNINGS TO FIXED CHARGES
(dollars in thousands)
<CAPTION>
Six Months Years Ended December 31,
Ended ----------------------------------------------------------------
June 30,1994 1993 1992 1991 1990 1989
<S> <C> <C> <C> <C> <C> <C>
EARNINGS:
Net income (1) ......................... $109,914 $202,219 $160,171 $135,837 $122,947 $100,398
Interest expense ....................... 187,574 368,986 378,679 375,349 389,203 372,526
Implicit interest in rents ............ 5,918 10,887 8,643 7,371 7,193 7,299
Income taxes ........................... 67,326 124,884 99,192 82,458 72,809 64,159
-------- -------- -------- -------- -------- --------
Total earnings ................................. $370,732 $706,976 $646,685 $601,015 $592,152 $544,382
======== ======== ======== ======== ======== ========
FIXED CHARGES:
Interest expense ....................... 187,574 $368,986 $378,679 $375,349 $389,203 $372,526
Implicit interest in rents ............. 5,918 10,887 8,643 7,371 7,193 7,299
-------- -------- -------- -------- -------- --------
Total fixed charges ............................ $193,492 $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
(1) Before cumulative effect of accounting changes.
</TABLE>
EXHIBIT 23(b)
ERNST & YOUNG Nationsbank Plaza Phone (615) 252-2000
414 Union Street, Suite 2100
Nashville, Tennessee 37219-1779
CONSENT OF INDEPENDENT AUDITORS
We consent to the references to our firm under the captions "Incorporation
by Reference," "Selected Financial Information," and "Experts" in the
Registration Statement (Form S-3) 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
October 6, 1994
EXHIBIT 24
POWER OF ATTORNEY
WHEREAS, AMERICAN GENERAL FINANCE CORPORATION, an Indiana
corporation (the "Company"), will file with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended,
a Registration Statement on Form S-3 ("Registration Statement") including a
prospectus therein ("Prospectus"), with such amendments (including
pre-effective and post-effective amendments) to such Registration Statement
and any supplement or supplements to the Prospectus as may be necessary or
appropriate, in connection with the registration of up to $2 billion of
certain debt securities or warrants to purchase same to be issued by the
Company;
NOW, THEREFORE, the undersigned in his capacity as a director or
officer or both, as the case may be, of the Company does hereby appoint
Daniel Leitch III, Philip M. Hanley, Gary M. Smith and James L. Gleaves,
and each of them, severally, his true and lawful attorney-in-fact or
attorneys-in-fact, with or without the others and with full power of
substitution and resubstitution, to execute in his name, place, and stead,
in his capacity as a director or officer or both, as the case may be, of
the Company:
(1) the Registration Statement including the Prospectus and
exhibits thereto and any and all amendments (including pre-effective and
post-effective amendments) to such Registration Statement and any
supplement or supplements to the Prospectus as said attorneys-in-fact or
any of them shall deem necessary or appropriate, together with all
instruments necessary or incidental in connection therewith, to file the
same or cause the same to be filed with the Commission and to appear before
the Commission in connection with any matter relating thereto; and
(2) any application, statement, petition, notice, or other
document, or any amendment thereto, or any exhibit filed in connection
therewith, which is required to register or qualify (or exempt from
registration or qualification) the securities of the Company being offered,
and to register or license the Company as a broker or dealer in securities,
under the securities or blue-sky or insurance laws of all states as may be
necessary or appropriate to permit the offering and sale as contemplated by
said Registration Statement.
Each of said attorneys-in-fact shall have full power and authority
to do and perform in the name and on behalf of the undersigned, in any and
all capacities, every act whatsoever necessary or desirable in connection
with such Registration Statement or related securities or blue-sky or
insurance filings, as fully and for all intents and purposes as the
undersigned might or could do in person, the undersigned hereby ratifying
and approving the acts of said attorneys-in-fact and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument
this 5th day of October, 1994.
/S/ WAYNE D. BAKER
Wayne D. Baker
STATE OF INDIANA )
)SS:
COUNTY OF VANDERBURGH )
Before me, a Notary Public in and for said County and State,
personally appeared Wayne D. Baker, who acknowledged the execution of the
foregoing Power of Attorney.
Witness my hand and Notarial Seal, this 3RD day of October, 1994.
/S/ KELA A. BRUNER
Printed: Kela A. Bruner
Notary Public
County of Residence: Warrick
Commission Expires: May 15, 1995
POWER OF ATTORNEY
WHEREAS, AMERICAN GENERAL FINANCE CORPORATION, an Indiana
corporation (the "Company"), will file with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended,
a Registration Statement on Form S-3 ("Registration Statement") including a
prospectus therein ("Prospectus"), with such amendments (including
pre-effective and post-effective amendments) to such Registration Statement
and any supplement or supplements to the Prospectus as may be necessary or
appropriate, in connection with the registration of up to $2 billion of
certain debt securities or warrants to purchase same to be issued by the
Company;
NOW, THEREFORE, the undersigned in his capacity as a director or
officer or both, as the case may be, of the Company does hereby appoint
Daniel Leitch III, Philip M. Hanley, Gary M. Smith and James L. Gleaves,
and each of them, severally, his true and lawful attorney-in-fact or
attorneys-in-fact, with or without the others and with full power of
substitution and resubstitution, to execute in his name, place, and stead,
in his capacity as a director or officer or both, as the case may be, of
the Company:
(1) the Registration Statement including the Prospectus and
exhibits thereto and any and all amendments (including pre-effective and
post-effective amendments) to such Registration Statement and any
supplement or supplements to the Prospectus as said attorneys-in-fact or
any of them shall deem necessary or appropriate, together with all
instruments necessary or incidental in connection therewith, to file the
same or cause the same to be filed with the Commission and to appear before
the Commission in connection with any matter relating thereto; and
(2) any application, statement, petition, notice, or other
document, or any amendment thereto, or any exhibit filed in connection
therewith, which is required to register or qualify (or exempt from
registration or qualification) the securities of the Company being offered,
and to register or license the Company as a broker or dealer in securities,
under the securities or blue-sky or insurance laws of all states as may be
necessary or appropriate to permit the offering and sale as contemplated by
said Registration Statement.
Each of said attorneys-in-fact shall have full power and authority
to do and perform in the name and on behalf of the undersigned, in any and
all capacities, every act whatsoever necessary or desirable in connection
with such Registration Statement or related securities or blue-sky or
insurance filings, as fully and for all intents and purposes as the
undersigned might or could do in person, the undersigned hereby ratifying
and approving the acts of said attorneys-in-fact and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument
this 3RD day of OCTOBER, 1994.
/S/ BENNIE D. HENDRIX
Bennie D. Hendrix
STATE OF INDIANA )
)SS:
COUNTY OF VANDERBURGH )
Before me, a Notary Public in and for said County and State,
personally appeared Bennie D. Hendrix, who acknowledged the execution of
the foregoing Power of Attorney.
Witness my hand and Notarial Seal, this 3RD day of OCTOBER, 1994.
/S/ MELISSA J. TURPIN
Printed: Melissa J. Turpin
Notary Public
County of Residence: VANDERBURGH
Commission Expires: 1-10-98
POWER OF ATTORNEY
WHEREAS, AMERICAN GENERAL FINANCE CORPORATION, an Indiana
corporation (the "Company"), will file with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended,
a Registration Statement on Form S-3 ("Registration Statement") including a
prospectus therein ("Prospectus"), with such amendments (including
pre-effective and post-effective amendments) to such Registration Statement
and any supplement or supplements to the Prospectus as may be necessary or
appropriate, in connection with the registration of up to $2 billion of
certain debt securities or warrants to purchase same to be issued by the
Company;
NOW, THEREFORE, the undersigned in his capacity as a director or
officer or both, as the case may be, of the Company does hereby appoint
Daniel Leitch III, Philip M. Hanley, Gary M. Smith and James L. Gleaves,
and each of them, severally, his true and lawful attorney-in-fact or
attorneys-in-fact, with or without the others and with full power of
substitution and resubstitution, to execute in his name, place, and stead,
in his capacity as a director or officer or both, as the case may be, of
the Company:
(1) the Registration Statement including the Prospectus and
exhibits thereto and any and all amendments (including pre-effective and
post-effective amendments) to such Registration Statement and any
supplement or supplements to the Prospectus as said attorneys-in-fact or
any of them shall deem necessary or appropriate, together with all
instruments necessary or incidental in connection therewith, to file the
same or cause the same to be filed with the Commission and to appear before
the Commission in connection with any matter relating thereto; and
(2) any application, statement, petition, notice, or other
document, or any amendment thereto, or any exhibit filed in connection
therewith, which is required to register or qualify (or exempt from
registration or qualification) the securities of the Company being offered,
and to register or license the Company as a broker or dealer in securities,
under the securities or blue-sky or insurance laws of all states as may be
necessary or appropriate to permit the offering and sale as contemplated by
said Registration Statement.
Each of said attorneys-in-fact shall have full power and authority
to do and perform in the name and on behalf of the undersigned, in any and
all capacities, every act whatsoever necessary or desirable in connection
with such Registration Statement or related securities or blue-sky or
insurance filings, as fully and for all intents and purposes as the
undersigned might or could do in person, the undersigned hereby ratifying
and approving the acts of said attorneys-in-fact and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument
this 3RD day of OCTOBER, 1994.
/S/ JAMES R. JERWERS
James R. Jerwers
STATE OF NEVADA )
)SS:
COUNTY OF WASHOE )
Before me, a Notary Public in and for said County and State,
personally appeared James R. Jerwers, who acknowledged the execution of the
foregoing Power of Attorney.
Witness my hand and Notarial Seal, this 3RD day of OCTOBER, 1994.
/S/ FREDERICK L. SLATIN
Printed: Frederick L. Slatin
Notary Public
County of Residence: WASHOE
Commission Expires: 4/16/96
POWER OF ATTORNEY
WHEREAS, AMERICAN GENERAL FINANCE CORPORATION, an Indiana
corporation (the "Company"), will file with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended,
a Registration Statement on Form S-3 ("Registration Statement") including a
prospectus therein ("Prospectus"), with such amendments (including
pre-effective and post-effective amendments) to such Registration Statement
and any supplement or supplements to the Prospectus as may be necessary or
appropriate, in connection with the registration of up to $2 billion of
certain debt securities or warrants to purchase same to be issued by the
Company;
NOW, THEREFORE, the undersigned in his capacity as a director or
officer or both, as the case may be, of the Company does hereby appoint
Daniel Leitch III, Philip M. Hanley, Gary M. Smith and James L. Gleaves,
and each of them, severally, his true and lawful attorney-in-fact or
attorneys-in-fact, with or without the others and with full power of
substitution and resubstitution, to execute in his name, place, and stead,
in his capacity as a director or officer or both, as the case may be, of
the Company:
(1) the Registration Statement including the Prospectus and
exhibits thereto and any and all amendments (including pre-effective and
post-effective amendments) to such Registration Statement and any
supplement or supplements to the Prospectus as said attorneys-in-fact or
any of them shall deem necessary or appropriate, together with all
instruments necessary or incidental in connection therewith, to file the
same or cause the same to be filed with the Commission and to appear before
the Commission in connection with any matter relating thereto; and
(2) any application, statement, petition, notice, or other
document, or any amendment thereto, or any exhibit filed in connection
therewith, which is required to register or qualify (or exempt from
registration or qualification) the securities of the Company being offered,
and to register or license the Company as a broker or dealer in securities,
under the securities or blue-sky or insurance laws of all states as may be
necessary or appropriate to permit the offering and sale as contemplated by
said Registration Statement.
Each of said attorneys-in-fact shall have full power and authority
to do and perform in the name and on behalf of the undersigned, in any and
all capacities, every act whatsoever necessary or desirable in connection
with such Registration Statement or related securities or blue-sky or
insurance filings, as fully and for all intents and purposes as the
undersigned might or could do in person, the undersigned hereby ratifying
and approving the acts of said attorneys-in-fact and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument
this 3RD day of OCTOBER,1994.
/S/ LARRY R. KLAHOLZ
Larry R. Klaholz
STATE OF INDIANA )
)SS:
COUNTY OF VANDERBAUGH )
Before me, a Notary Public in and for said County and State,
personally appeared Larry R. Klaholz, who acknowledged the execution of the
foregoing Power of Attorney.
Witness my hand and Notarial Seal, this 3RD day of OCTOBER, 1994.
/S/ MELISSA J. TURPIN
Printed: Melissa J. Turpin
Notary Public
County of Residence: VANDERBAUGH
Commission Expires: 1-10-98
POWER OF ATTORNEY
WHEREAS, AMERICAN GENERAL FINANCE CORPORATION, an Indiana
corporation (the "Company"), will file with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended,
a Registration Statement on Form S-3 ("Registration Statement") including a
prospectus therein ("Prospectus"), with such amendments (including
pre-effective and post-effective amendments) to such Registration Statement
and any supplement or supplements to the Prospectus as may be necessary or
appropriate, in connection with the registration of up to $2 billion of
certain debt securities or warrants to purchase same to be issued by the
Company;
NOW, THEREFORE, the undersigned in his capacity as a director or
officer or both, as the case may be, of the Company does hereby appoint
Daniel Leitch III, Philip M. Hanley, Gary M. Smith and James L. Gleaves,
and each of them, severally, his true and lawful attorney-in-fact or
attorneys-in-fact, with or without the others and with full power of
substitution and resubstitution, to execute in his name, place, and stead,
in his capacity as a director or officer or both, as the case may be, of
the Company:
(1) the Registration Statement including the Prospectus and
exhibits thereto and any and all amendments (including pre-effective and
post-effective amendments) to such Registration Statement and any
supplement or supplements to the Prospectus as said attorneys-in-fact or
any of them shall deem necessary or appropriate, together with all
instruments necessary or incidental in connection therewith, to file the
same or cause the same to be filed with the Commission and to appear before
the Commission in connection with any matter relating thereto; and
(2) any application, statement, petition, notice, or other
document, or any amendment thereto, or any exhibit filed in connection
therewith, which is required to register or qualify (or exempt from
registration or qualification) the securities of the Company being offered,
and to register or license the Company as a broker or dealer in securities,
under the securities or blue-sky or insurance laws of all states as may be
necessary or appropriate to permit the offering and sale as contemplated by
said Registration Statement.
Each of said attorneys-in-fact shall have full power and authority
to do and perform in the name and on behalf of the undersigned, in any and
all capacities, every act whatsoever necessary or desirable in connection
with such Registration Statement or related securities or blue-sky or
insurance filings, as fully and for all intents and purposes as the
undersigned might or could do in person, the undersigned hereby ratifying
and approving the acts of said attorneys-in-fact and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument
this 3RD day of OCTOBER, 1994.
/S/ DAVID C. SEELEY
David C. Seeley
STATE OF INDIANA )
)SS:
COUNTY OF VANDERBURGH )
Before me, a Notary Public in and for said County and State,
personally appeared David C. Seeley, who acknowledged the execution of the
foregoing Power of Attorney.
Witness my hand and Notarial Seal, this 3RD day of OCTOBER, 1994.
/S/ Melissa J. Turpin
Printed: MELISSA J. TURPIN
Notary Public
County of Residence: VANDERBAUGH
Commission Expires: 1-10-98
POWER OF ATTORNEY
WHEREAS, AMERICAN GENERAL FINANCE CORPORATION, an Indiana
corporation (the "Company"), will file with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended,
a Registration Statement on Form S-3 ("Registration Statement") including a
prospectus therein ("Prospectus"), with such amendments (including
pre-effective and post-effective amendments) to such Registration Statement
and any supplement or supplements to the Prospectus as may be necessary or
appropriate, in connection with the registration of up to $2 billion of
certain debt securities or warrants to purchase same to be issued by the
Company;
NOW, THEREFORE, the undersigned in his capacity as a director or
officer or both, as the case may be, of the Company does hereby appoint
Daniel Leitch III, Philip M. Hanley, Gary M. Smith and James L. Gleaves,
and each of them, severally, his true and lawful attorney-in-fact or
attorneys-in-fact, with or without the others and with full power of
substitution and resubstitution, to execute in his name, place, and stead,
in his capacity as a director or officer or both, as the case may be, of
the Company:
(1) the Registration Statement including the Prospectus and
exhibits thereto and any and all amendments (including pre-effective and
post-effective amendments) to such Registration Statement and any
supplement or supplements to the Prospectus as said attorneys-in-fact or
any of them shall deem necessary or appropriate, together with all
instruments necessary or incidental in connection therewith, to file the
same or cause the same to be filed with the Commission and to appear before
the Commission in connection with any matter relating thereto; and
(2) any application, statement, petition, notice, or other
document, or any amendment thereto, or any exhibit filed in connection
therewith, which is required to register or qualify (or exempt from
registration or qualification) the securities of the Company being offered,
and to register or license the Company as a broker or dealer in securities,
under the securities or blue-sky or insurance laws of all states as may be
necessary or appropriate to permit the offering and sale as contemplated by
said Registration Statement.
Each of said attorneys-in-fact shall have full power and authority
to do and perform in the name and on behalf of the undersigned, in any and
all capacities, every act whatsoever necessary or desirable in connection
with such Registration Statement or related securities or blue-sky or
insurance filings, as fully and for all intents and purposes as the
undersigned might or could do in person, the undersigned hereby ratifying
and approving the acts of said attorneys-in-fact and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument
this 3RD day of OCTOBER, 1994.
/S/ JAMES R. TUERFF
James R. Tuerff
STATE OF TEXAS )
)SS:
COUNTY OF HARRIS )
Before me, a Notary Public in and for said County and State,
personally appeared James R. Tuerff, who acknowledged the execution of the
foregoing Power of Attorney.
Witness my hand and Notarial Seal, this 5TH day of OCTOBER, 1994.
/S/ PAM TUDOR
Printed: Pam Tudor
Notary Public
County of Residence: HARRIS
Commission Expires: 1-15-96
POWER OF ATTORNEY
WHEREAS, AMERICAN GENERAL FINANCE CORPORATION, an Indiana
corporation (the "Company"), will file with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended,
a Registration Statement on Form S-3 ("Registration Statement") including a
prospectus therein ("Prospectus"), with such amendments (including
pre-effective and post-effective amendments) to such Registration Statement
and any supplement or supplements to the Prospectus as may be necessary or
appropriate, in connection with the registration of up to $2 billion of
certain debt securities or warrants to purchase same to be issued by the
Company;
NOW, THEREFORE, the undersigned in his capacity as a director or
officer or both, as the case may be, of the Company does hereby appoint
Daniel Leitch III, Philip M. Hanley, Gary M. Smith and James L. Gleaves,
and each of them, severally, his true and lawful attorney-in-fact or
attorneys-in-fact, with or without the others and with full power of
substitution and resubstitution, to execute in his name, place, and stead,
in his capacity as a director or officer or both, as the case may be, of
the Company:
(1) the Registration Statement including the Prospectus and
exhibits thereto and any and all amendments (including pre-effective and
post-effective amendments) to such Registration Statement and any
supplement or supplements to the Prospectus as said attorneys-in-fact or
any of them shall deem necessary or appropriate, together with all
instruments necessary or incidental in connection therewith, to file the
same or cause the same to be filed with the Commission and to appear before
the Commission in connection with any matter relating thereto; and
(2) any application, statement, petition, notice, or other
document, or any amendment thereto, or any exhibit filed in connection
therewith, which is required to register or qualify (or exempt from
registration or qualification) the securities of the Company being offered,
and to register or license the Company as a broker or dealer in securities,
under the securities or blue-sky or insurance laws of all states as may be
necessary or appropriate to permit the offering and sale as contemplated by
said Registration Statement.
Each of said attorneys-in-fact shall have full power and authority
to do and perform in the name and on behalf of the undersigned, in any and
all capacities, every act whatsoever necessary or desirable in connection
with such Registration Statement or related securities or blue-sky or
insurance filings, as fully and for all intents and purposes as the
undersigned might or could do in person, the undersigned hereby ratifying
and approving the acts of said attorneys-in-fact and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument
this 5TH day of OCTOBER, 1994.
/S/ PETER V. TUTERS
Peter V. Tuters
STATE OF TEXAS )
)SS:
COUNTY OF HARRIS )
Before me, a Notary Public in and for said County and State,
personally appeared Peter V. Tuters, who acknowledged the execution of the
foregoing Power of Attorney.
Witness my hand and Notarial Seal, this 5TH day of OCTOBER, 1994.
/S/ PAM TUDOR
Printed: PAM TUDOR
Notary Public
County of Residence: HARRIS
Commission Expires: 1-15-96
EXHIBIT 25
Securities Act of 1933 File No.__________
(If application to determine eligibility of
trustee for delayed offering pursuant to
Section 305 (b) (2))
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT
TO SECTION 305(b)(2) / /
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
(Exact name of trustee as specified in its charter)
13-2633612
(I.R.S. Employer Identification Number)
1 CHASE MANHATTAN PLAZA, NEW YORK, NEW YORK
(Address of principal executive offices)
10081
(Zip Code)
AMERICAN GENERAL FINANCE CORPORATION
(Exact name of obligor as specified in its charter)
INDIANA
(State or other jurisdiction of incorporation or organization)
35-0416090
(I.R.S. Employer Identification No.)
601 N.W. SECOND STREET
EVANSVILLE, INDIANA
(Address of principal executive offices)
47708
(Zip Code)
DEBT SECURITIES
(Title of the indenture securities)
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of The Federal Reserve System,
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
The Trustee is not the obligor, nor is the Trustee
directly or indirectly controlling, controlled by, or under
common control with the obligor.
(See Note on Page 2.)
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as a part of this statement of
eligibility.
*1. -- A copy of the articles of association of the trustee
as now in effect .(See Exhibit T-1 (Item 12) ,
Registration No. 33-55626.)
*2. -- Copies of the respective authorizations of The Chase
Manhattan Bank (National Association) and The Chase
Bank of New York (National Association) to commence
business and a copy of approval of merger of said
corporations, all of which documents are still in
effect. (See Exhibit T-1 (Item 12), Registration No.
2-67437.)
*3. -- Copies of authorizations of The Chase Manhattan Bank
(National Association) to exercise corporate trust
powers, both of which documents are still in effect.
(See Exhibit T-1 (Item 12), Registration No.
2-67437).
*4. -- A copy of the existing by-laws of the trustee. (See
Exhibit T-1 (Item 12(a)), Registration No. 33-28806.)
*5. -- A copy of each indenture referred to in Item 4, if the
obligor is in default. (Not applicable).
*6. -- The consents of United States institutional trustees
required by Section 321(b) of the Act. (See Exhibit
T-1, (Item 12), Registration No. 22-19019.)
7. -- A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
*The Exhibits thus designated are incorporated herein by reference.
Following the description of such Exhibits is a reference to the copy of
the Exhibit heretofore filed with the Securities and Exchange Commission,
to which there have been no amendments or changes.
1.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by
the trustee of all facts on which to base a responsive answer to Item 2 the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by
an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
the trustee, The Chase Manhattan Bank (National Association), a corporation
organized and existing under the laws of the United States of America, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized , all in the City of New York, and
the State of New York, on the 5th day October, 1994.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By: Brooks Von Arx, Jr.
Assistant Treasurer
2.
<PAGE>
EXHIBIT 7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the
THE CHASE MANHATTAN BANK, N.A.
of New York in the State of New York, at the close of business on June 30,
1994, published in response to call made by Comptroller of the Currency,
under title 12, United States Code, Section 161.
<TABLE>
<CAPTION>
CHARTER NUMBER 2370 COMPTROLLER OF THE CURRENCY NORTHEASTERN DISTRICT
STATEMENT OF RESOURCES AND LIABILITIES
THOUSANDS
ASSETS OF DOLLARS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ........................ $ 4,956,205
Interest-bearing balances ................................................. 6,138,639
Held to maturity securities .................................................. 926,935
Available-for-sale securities ................................................ 4,934,082
Federal funds sold and securities purchased under agreements to resell
in domestic offices of the bank and of its Edge and Agreement
subsidiaries, and in IBFs:
Federal funds sold ........................................................ 3,032,000
Securities purchased under agreements to resell ........................... 0
Loans and lease financing receivable:
Loans and leases, net of unearned income .................................. $ 49,508,041
LESS: Allowance for loan and lease losses ................................. 1,087,962
LESS: Allocated transfer risk reserve .................................... 0
------------
Loans and leases, net of unearned income, allowance, and reserve .......... 48,420,079
Assets held in trading accounts .............................................. 18,856,428
Premises and fixed assets (including capitalized leases) ..................... 1,653,111
Other real estate owned ...................................................... 822,608
Investments in unconsolidated subsidiaries and associated companies .......... 57,230
Customers' liability to this bank on acceptances outstanding ................. 814,608
Intangible assets ............................................................ 378,800
Other assets ................................................................. 4,400,477
------------
TOTAL ASSETS ................................................................. $ 95,391,202
============
LIABILITIES
Deposits:
In domestic offices ....................................................... $ 30,434,771
Noninterest-bearing .................................................... $ 11,442,433
Interest-bearing ....................................................... 18,992,338
------------
In foreign offices, Edge and Agreement subsidiaries, and IBFs ............. 33,399,860
Noninterest-bearing .................................................... $ 2,858,541
Interest-bearing ....................................................... 30,541,319
------------
Federal funds purchased and securities sold under agreements to repurchase
in domestic offices of the bank and of its Edge and Agreement subsidiaries,
and in IBFs:
Federal funds purchased ................................................... 1,134,731
Securities sold under agreements to repurchase ............................ 69,783
Demand notes issued to the U.S. Treasury ..................................... 25,000
Trading liabilities .......................................................... 12,831,327
Other borrowed money:
With original maturity of one year or less ................................ 2,678,498
With original maturity of more than one year .............................. 167,944
Mortgage indebtedness and obligations under capitalized leases ............... 40,965
Bank's liability on acceptances executed and outstanding ..................... 825,499
Subordinated notes and debentures ............................................ 2,360,000
Other liabilities ............................................................ 4,681,805
------------
TOTAL LIABILITIES ............................................................ 88,650,183
------------
Limited-life preferred stock and related surplus ............................. 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus ................................ 0
Common stock ................................................................. 913,113
Surplus ...................................................................... 4,614,743
Undivided profits and capital reserves ....................................... 1,226,618
Net unrealized holding gains (losses) on available-for-sale securities ....... (24,868)
Cumulative foreign currency translation adjustments .......................... 11,413
------------
TOTAL EQUITY CAPITAL ......................................................... 6,741,019
------------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK, AND EQUITY CAPITAL .......... $ 95,391,202
============
</TABLE>
I, Lester J. Stephens, Jr., Senior Vice President and Controller of the
above named bank do hereby declare that this Report of Condition is true
and correct to the best of my knowledge and belief.
(Signed) Lester J. Stephens, Jr.
We the undersigned directors, attest to the correctness of this statement
of resources and liabilities. We declare that it has been examined by us,
and to the best of our knowledge and belief has been prepared in
conformance with the instructions and is true and correct.
(Signed) Thomas G. Labrecque
(Signed) Arthur F. Ryan Directors
(Signed) Richard J. Boyle
