<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 28, 1994
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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[LOGO]
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE
(STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION)
94-1278569
(I.R.S. EMPLOYER
IDENTIFICATION NO.)
DIAL TOWER, PHOENIX, ARIZONA 85004
(602) 207-4900
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
SAMUEL L. EICHENFIELD
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
GREYHOUND FINANCIAL CORPORATION
DIAL TOWER, 1850 N. CENTRAL AVENUE, PHOENIX, ARIZONA 85004
(602) 207-4900
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPIES TO:
WILLIAM J. HALLINAN
GENERAL COUNSEL
GFC FINANCIAL CORPORATION
DIAL TOWER, 1850 N. CENTRAL AVENUE
PHOENIX, ARIZONA 85004
PAUL C. PRINGLE
BROWN & WOOD
555 CALIFORNIA STREET
SAN FRANCISCO, CALIFORNIA 94104
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
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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/
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<S> <C> <C> <C> <C>
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TITLE OF EACH CLASS AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO TO BE OFFERING PRICE AGGREGATE REGISTRATION
BE REGISTERED REGISTERED PER UNIT* OFFERING PRICE* FEE
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Senior Debt Securities........... $1,000,000,000 100% $1,000,000,000 $344,830
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</TABLE>
* Estimated solely for the purpose of determining the registration fee.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
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.
PRELIMINARY PROSPECTUS
SUBJECT TO COMPLETION, DATED MARCH 28, 1994
PROSPECTUS
[LOGO]
SENIOR DEBT SECURITIES
Greyhound Financial Corporation ("Company" or "GFC") may offer from time to
time up to $1,000,000,000 aggregate principal amount of its senior debt
securities ("Securities") on terms to be determined at the time of sale. The
Securities may be issued in one or more series with the same or various
maturities at or above par or with an original issue discount and may be issued
in fully registered form or in the form of one or more global securities (each a
"Global Security"). The specific designation, the aggregate principal amount,
the maturity, the purchase price, the rate (which may be fixed or variable) and
time of payment of any interest, any sinking fund, any terms of redemption at
the option of the Company or the holder, and other specific terms of the
Securities in respect of which this Prospectus is being delivered ("Offered
Securities") are set forth in an accompanying prospectus supplement ("Prospectus
Supplement"), together with the terms of offering of the Offered Securities.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The Offered Securities may be offered through underwriters, agents or
dealers. If underwriters are used, it is expected that the managing underwriters
will include Citicorp Securities, Inc., Goldman, Sachs & Co., Lehman Brothers,
Lehman Brothers Inc., Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Salomon Brothers Inc. If an underwriter, agent or dealer is
involved in the offering of any Offered Securities, the underwriter's discount,
agent's commission or dealer's purchase price will be set forth in, or may be
calculated from, the Prospectus Supplement, and the net proceeds to the Company
from such offering will be the public offering price of the Offered Securities
less such discount in the case of an underwriter, the purchase price of the
Offered Securities less such commission in the case of an agent or the purchase
price of the Offered Securities in the case of a dealer, and less, in each case,
the other expenses of the Company associated with the issuance and distribution
of the Offered Securities. See "Plan of Distribution."
The date of this Prospectus is , 1994.
<PAGE> 3
IN CONNECTION WITH AN OFFERING, THE UNDERWRITERS FOR SUCH OFFERING MAY
OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE
OF THE OFFERED SECURITIES AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN
THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY
TIME.
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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 can be
inspected and copied at Room 1024 at the public reference facilities maintained
by the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, as well as
the Regional Offices of the Commission at Northwestern Atrium Center, Suite
1400, 500 West Madison Street, Chicago, Illinois 60661-2511 and 7 World Trade
Center, New York, New York 10048, and copies can be obtained by mail from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at the prescribed rates. Reports and other information
concerning the Company can also be inspected at the office of the New York Stock
Exchange, 20 Broad Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Incorporated herein by reference are the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1993 and Current Reports on Form
8-K, 8-K/A and 8-K/A-1 dated February 14, 1994 filed pursuant to Section 13 of
the Exchange Act with the Commission.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the termination of the offering
of the Securities shall be deemed to be incorporated by reference in this
Prospectus and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
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 this Prospectus.
The Company will provide without charge upon written or oral request by any
person to whom this Prospectus is delivered a copy of any or all of the
documents described above which have been incorporated by reference in this
Prospectus, other than exhibits to such documents. Such request should be
directed to Robert J. Fitzsimmons, Vice President-Treasurer, Greyhound Financial
Corporation, Dial Tower, 1850 N. Central Avenue, Phoenix, Arizona 85004,
telephone number (602) 207-4900.
2
<PAGE> 4
GREYHOUND FINANCIAL CORPORATION
Greyhound Financial Corporation, a Delaware corporation (the "Company"),
engages in the business of providing secured financing of selected commercial
and real estate activities in the United States and intermediate-term lending on
a secured basis in foreign countries. The Company accomplishes this through
secured loans and leases. The Company is in the process of winding down the
London based financing operations of Greyhound European Financial Group
("GEFG").
The Company generates interest and other income through charges assessed on
outstanding loans, loan servicing, leasing and other fees. The Company's primary
expenses are the costs of funding its loan business (including interest paid on
debt), provisions for possible credit losses, marketing expenses, salaries and
employee benefits, servicing and other operating expenses and income taxes.
The Company's current emphasis is on secured lending to businesses in
specific industry niches, where the Company's expertise in evaluating the needs
and credit worthiness of prospective customers enables it to provide specialized
financing services. The Company's strategy has been to seek to maintain a
high-quality portfolio, using clearly defined underwriting standards in an
effort to minimize the level of non-earning assets and write-offs.
The Company's activities include:
- Corporate Finance. The Corporate Finance group provides financing,
generally in the range of $2 million to $25 million, focusing on middle
market businesses nationally, including distribution, wholesale, retail,
manufacturing and service industries. The group's lending is primarily in
the form of term loans secured by the assets of the borrower, with
significant emphasis on cash flow as the source of repayment of the
secured loan.
- Transportation Finance. Through the Transportation Finance group, the
Company structures secured financings for specialized areas of the
transportation industry, principally involving domestic and foreign used
aircraft, as well as domestic short-line railroads and used rail
equipment. Typical transactions involve financing up to 80% of the fair
market value of used equipment in the $3 million to $30 million range.
Traditionally focused on the domestic marketplace, Transportation Finance
established a London, England office in 1992, broadening its product line
to include international aircraft loans.
- Communications Finance. The Communications Finance group specializes in
radio and television. Other markets include cable television, print and
outdoor media services in the United States. The Company extends secured
loans to communications businesses requiring funds for recapitalization,
refinancing or acquisition. Loan sizes generally are from $3 million to
$35 million.
- Commercial Real Estate Finance. The Commercial Real Estate group
provides cash-flow-based financing primarily for acquisitions and
refinancings to experienced real estate developers and owner tenants of
income-producing properties in the United States and the United Kingdom.
The Company concentrates on secured financing opportunities, generally
between $3 million and $30 million, involving senior mortgage term loans
on owner-occupied commercial real estate. The Company's portfolio of real
estate leveraged leases is also managed as part of the commercial real
estate portfolio.
- Resort Finance. The Resort Finance group focuses on successful,
experienced resort developers, primarily of timeshare resorts, second
home resort communities, golf resorts and resort hotels. Extending funds
through a variety of lending options, the Resort Finance group provides
loans and lines of credit ranging from $3 million to $30 million for
construction, acquisitions, receivables financing and purchases and other
uses. Through its subsidiary, GFC Portfolio Services, Inc. ("GPS"), the
Resort Finance group offers expanded convenience and service to its
customers. Professional receivables collections and cash management gives
developers the ability of having loan-related administrative functions
performed for them by the Company.
- Asset Based Finance. Acquired in early 1993, the Asset Based Finance
group ("ABF") offers a full range of nationwide collateral-oriented
lending programs to middle-market businesses including
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<PAGE> 5
manufacturers, wholesalers and distributors. The Company's ABF group
mainly provides revolving lines of credit ranging between $2 million and
$25 million, often partnering with the Corporate Finance group to offer
convenient "one-stop" financing to businesses.
- Consumer Rediscount Finance. The Consumer Rediscount Group ("CRG")
offers $2 million to $25 million revolving credit lines to regional
consumer finance companies which in turn extend credit to consumers. The
Company's customers provide credit to consumers to finance home
improvements, automobile purchases, insurance premiums and for a variety
of other financial needs.
- Ambassador Factors. On February 14, 1994, the Company purchased Fleet
Factors Corp., better known as Ambassador Factors, from Fleet Financial
Group, Inc. Ambassador Factors provides accounts receivable factoring and
asset-based lending principally to small and medium-sized textile and
apparel manufacturers and importers.
- TriCon. On March 4, 1994, GFC Financial Corporation ("GFC Financial")
announced the signing of a definitive purchase agreement under which the
Company will acquire TriCon Capital Corporation ("TriCon"), an indirect
wholly-owned subsidiary of Bell Atlantic Corporation. This transaction is
subject to regulatory approvals and certain other conditions. TriCon is a
$1.8 billion niche-oriented provider of commercial and equipment leasing
services. TriCon's marketing orientation fits well with the Company's
emphasis on value-added products and services in focused niches of the
commercial finance business and further diversifies the Company's asset
base.
In conjunction with the liquidation of the GEFG portfolio, GEFG surrendered
the banking license of its United Kingdom bank, Greyhound Bank PLC, and renamed
the company Greyhound Guaranty Limited ("GGL"). GGL operates a finance group
that was primarily involved in lending to individuals in the United Kingdom
secured by second mortgages on residential real estate. The group ceased writing
new consumer finance business in the first quarter of 1991 but continues to
administer and collect loans previously made.
The Company was incorporated under the laws of Delaware in 1965 and is the
successor to a California corporation which commenced operations in 1954. The
principal executive offices of the Company are located at Dial Tower, 1850 N.
Central Avenue, Phoenix, Arizona 85004, and its telephone number is (602)
207-4900. All of the capital stock of the Company is owned by GFC Financial, the
common stock of which is publicly traded on the New York Stock Exchange. GFC
Financial owns substantially all of the financial services businesses
(principally the Company) previously owned by its former parent, The Dial Corp.
RATIO OF INCOME TO FIXED CHARGES
The following table sets forth the Company's ratios of income to fixed
charges ("ratio") for each of the past five years.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
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1993 1992 1991 1990 1989
- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C>
1.51 1.38 -- 1.24 1.23
- ---- ---- ---- ---- ----
- ---- ---- ---- ---- ----
</TABLE>
Variations in interest rates generally do not have a substantial impact on
the ratio because the fixed-rate and floating-rate assets are generally matched
with liabilities of similar rate and term.
Income available for fixed charges, for purposes of the computation of the
ratio of income to fixed charges, consists of the sum of income before income
taxes (adjusted for the effect of reduced tax rates on income from leveraged
leases) and fixed charges. Fixed charges include interest and related debt
expense and a portion of rental expense determined to be representative of
interest.
For the year ended December 31, 1991, earnings were inadequate to cover
fixed charges by $35,256,000. This inadequacy was due to certain restructuring
and other charges of $65,000,000 and transaction costs of $13,000,000 recorded
in the fourth quarter of 1991 in connection with the transfer by The Dial Corp
to GFC Financial of its financial services and insurance businesses, including
the Company.
4
<PAGE> 6
USE OF PROCEEDS
Unless otherwise indicated in a Prospectus Supplement with respect to the
proceeds from the sale of the particular Offered Securities to which such
Prospectus Supplement relates, the net proceeds to be received by the Company
from the sale of the Securities will be added to the Company's general funds and
are intended to be used for general corporate purposes, which may include
without limitation, the reduction of short-term debt or the refinancing of
long-term debt.
DESCRIPTION OF SECURITIES
The Securities will be issued under an Indenture, dated as of September 1,
1992, as supplemented and amended from time to time (hereinafter called the
"Indenture"), between the Company and The Chase Manhattan Bank, N.A., as Trustee
(the "Trustee"). A copy of the Indenture is filed as an exhibit to the
Registration Statement. The following statements do not purport to be complete
and are subject to the detailed provisions of the Indenture, to which reference
is hereby made, including the definition of certain terms used herein without
definition.
GENERAL
The Securities offered by this Prospectus will be limited to $1,000,000,000
aggregate principal amount. The Indenture does not limit the aggregate principal
amount of Securities which may be offered thereunder and provides that
Securities may be issued in one or more series, in each case as authorized from
time to time by the Company. The Securities will be unsecured general
obligations of the Company and will not be subordinated to any other general
indebtedness of the Company. Reference is made to the Prospectus Supplement
together with any pricing supplement thereto relating to the Offered Securities
for the following terms thereof:
(1) the title of the Offered Securities;
(2) any limit upon the aggregate principal amount of the Offered
Securities;
(3) the date or dates on which the principal of the Offered Securities
shall be payable;
(4) the rate or rates (which may be fixed or variable) at which the
Offered Securities shall bear interest, or the method by which such rate or
rates shall be determined;
(5) the date or dates from which such interest shall accrue, or the
method by which such date or dates shall be determined, the dates on which
such interest shall be payable and any record dates therefor;
(6) the place or places where the principal of, premium, if any, and
interest on the Offered Securities shall be payable;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which the Offered Securities may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem, purchase or
repay the Offered Securities pursuant to any sinking fund or analogous
provision or at the option of a holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which the Offered Securities shall be redeemed, purchased or repaid
pursuant to such obligation;
(9) if other than the principal amount thereof, the percentage of the
principal amount of the Offered Securities payable upon declaration of
acceleration of the maturity of the Offered Securities;
(10) whether the Offered Securities are to be issued in whole or in
part in global form ("Global Securities") and, if so, the identity of the
Depositary for such Global Securities, and the terms and conditions, if
any, upon which interests in such Global Securities may be exchanged, in
whole or in part, for the individual Securities represented thereby;
5
<PAGE> 7
(11) any deletions from, modifications of, or additions to the events
of default or covenants of the Company with respect to any of the Offered
Securities; and
(12) any other terms of the Offered Securities none of which shall be
inconsistent with the provisions of the Indenture (Section 2.02).
The Company may authorize the issuance and provide for the terms of a
series of Securities pursuant to a resolution of its Board of Directors or any
duly authorized committee thereof or pursuant to a supplemental indenture.
The Securities may be issued in registered form. Securities of a series may
be issued in whole or in part in the form of one or more Global Securities, as
described below under "Global Securities." Unless the Prospectus Supplement
relating thereto specifies otherwise, Securities will be issued only in
denominations of $1,000 or any integral multiple thereof (Section 2.01). One or
more Global Securities will be issued in a denomination or denominations equal
to the aggregate principal amount of Outstanding Securities of the series to be
represented by such Global Security or Securities (Section 3.01).
Securities (other than a Global Security) may be presented for exchange and
registration of transfer (with the form of transfer endorsed thereon duly
executed) at the office of the Company designated for such purpose or at the
office of any transfer agent or at the office of any Security Registrar, without
service charge and upon payment of any taxes and other governmental charges as
described in the Indenture. Securities may initially be presented for
registration of transfer or exchange at the Company's principal business office,
Dial Tower, 1850 N. Central Avenue, Phoenix, Arizona 85004 and at the Principal
Office of the Trustee at 4 Chase MetroTech Center, 3rd Floor, Brooklyn, New York
11245. Securities (other than a Global Security) in the several denominations
will be interchangeable without service charge, but the Company may require
payment to cover taxes or other governmental charges. The Trustee initially will
act as authenticating agent under the Indenture (Sections 1.02, 2.05 and 5.02).
PAYMENT AND PAYING AGENTS
Payment of principal of and premium, if any, on Securities (other than a
Global Security) will be made against surrender of such Securities at the
Principal Office of the Trustee in The City of New York. Payment of any
installment of interest on Securities will be made to the person in whose name
such Security is registered at the close of business on the record date for such
interest. Unless otherwise indicated in the Prospectus Supplement, payments of
such interest will be made at the Principal Office of the Trustee in The City of
New York, or, at the option of the Company, by check mailed by first class mail
to registered holders of a Security at such holder's registered address
(Sections 2.01 and 5.02).
All moneys paid by the Company to a paying agent for the payment of
principal of or premium, if any, or interest on any Security that remain
unclaimed at the end of three years after such principal, premium or interest
shall have become due and payable will be repaid to the Company and the holder
of such Security entitled to receive such payment will thereafter look only to
the Company for payment therefor (Section 11.03).
GLOBAL SECURITIES
The Securities of a series may be issued in whole or in part in global
form. A Security in global form will be deposited with, or on behalf of, a
Depositary, which will be identified in an applicable Prospectus Supplement. A
Global Security may be issued in either registered or bearer form and in either
temporary or permanent form. A Security in global form may not be transferred
except as a whole by the Depositary for such Global Security to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor of such Depositary or a nominee of such successor (Section 2.05).
If a Depositary for Securities of a series is at any time unwilling or
unable to continue as Depositary and a successor depositary is not appointed by
the Company within ninety days, the Company will issue Securities of such series
in definitive form in exchange for the Global Security or Securities
representing Securities of such
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<PAGE> 8
series. In addition, the Company may at any time and in its sole discretion
determine not to have any Securities of a series represented by one or more
Global Securities and, in such event, will issue Securities of such series in
definitive form in exchange for the Global Security or Securities representing
Securities. Further, if the Company so specifies with respect to the Securities
of a series, each Person specified by the Depositary of the Global Security
representing Securities of such series may, on terms acceptable to the Company
and the Depositary for such Global Security, receive Securities of such series
in definitive form. In any such instance, each Person so specified by the
Depositary of the Global Security will be entitled to physical delivery in
definitive form of Securities of the series represented by such Global Security
equal in principal amount to such Person's beneficial interest in the Global
Security (Section 2.05).
If any Securities of a series are issuable in global form, the applicable
Prospectus Supplement will describe the additional circumstances, if any, under
which beneficial owners of interests in any such Global Security may exchange
such interests for definitive Securities of such series and of like tenor and
principal amount in any authorized form and denomination, the manner of payment
of principal of, premium and interest, if any, on any such Global Security and
the material terms of the depositary arrangement with respect to any such Global
Security.
CERTAIN DEFINITIONS
The following terms are defined substantially as follows in Section 1.02 of
the Indenture and are used herein as so defined. For the purposes of the
following terms, all items shall be determined in accordance with generally
accepted accounting principles, unless otherwise indicated.
"Consolidated Net Tangible Assets" means the total of all assets reflected
on a consolidated balance sheet of the Company and its consolidated
Subsidiaries, at their net book values (after deducting related depreciation,
depletion, amortization and all other valuation reserves which, in accordance
with generally accepted accounting principles, should be set aside in connection
with the business conducted), but excluding goodwill, unamortized debt discount
and all other like intangible assets, less the aggregate of the current
liabilities of the Company and its consolidated Subsidiaries reflected on such
balance sheet. For purposes of this definition, "current liabilities" include
all indebtedness for money borrowed, incurred, issued, assumed or guaranteed by
the Company and its consolidated Subsidiaries, and other payables and accruals,
in each case payable on demand or due within one year of the date of
determination of Consolidated Net Tangible Assets, but shall exclude any portion
of long-term debt maturing within one year of the date of such determination,
all as reflected on such consolidated balance sheet of the Company and its
consolidated Subsidiaries.
"Lien" means any lien, charge, security interest, right of another under
any conditional sale or other title retention agreement or any other encumbrance
affecting title to property, including any lease under a sale and leaseback
arrangement.
"Subsidiary" means any corporation a majority of the Voting Stock of which
is owned, directly or indirectly, by the Company or by one or more Subsidiaries
or by the Company and one or more Subsidiaries. "Restricted Subsidiary" is any
Subsidiary a majority of the Voting Stock of which is owned, directly, by the
Company or by one or more Restricted Subsidiaries or by the Company and one or
more Restricted Subsidiaries and which is designated as such by resolution of
the Board of Directors of the Company. "Unrestricted Subsidiary" means any
Subsidiary other than a Restricted Subsidiary.
"Voting Stock" means stock of any class or classes (however designated)
having ordinary voting power for the election of a majority of the members of
the board of directors (or any governing body) of such corporation, other than
stock having such power only by reason of the happening of a contingency.
LIMITATION ON LIENS
The Indenture provides that the Company will not, and will not permit any
Restricted Subsidiary to, create, assume, incur or suffer to be created, assumed
or incurred or to exist any Lien upon any of the properties of any character of
the Company or any Restricted Subsidiary without making effective provision for
securing the Securities equally and ratably with any other obligation or
indebtedness so secured, other
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<PAGE> 9
than: (i) leases of property in the ordinary course of business or in the event
that such property is not needed in the operation of the business; (ii) Liens
securing indebtedness incurred to finance the acquisition of the property
subject to the Lien, and in respect of which the creditor has no recourse
against the Company or any Restricted Subsidiary except recourse to such
property, or to the proceeds of any sale or lease of such property or both;
(iii) deposits with or security given to a governmental agency as a condition to
the transaction of business or the exercise of a privilege, or made to enable
the Company or a Restricted Subsidiary to maintain self-insurance or participate
in any fund in connection with worker's compensation, unemployment insurance,
old age pensions, or other social security, or as collateral in connection with
any bond on appeal by the Company or any Restricted Subsidiary from any judgment
or in connection with any other judicial proceedings by or against the Company
or any Restricted Subsidiary; (iv) Liens for taxes or assessments which are not
yet due or are payable without penalty or are being contested in good faith and
against which reserves deemed adequate by the Company or a Restricted Subsidiary
have been established, provided that foreclosure or similar proceedings have not
been commenced; (v) Liens of any judgment, if such judgment shall not have
remained undischarged, or unstayed on appeal or otherwise, for more than six
months; (vi) undetermined Liens or charges incident to construction, mechanics'
and other like Liens arising in the ordinary course of business in respect of
obligations which are not overdue or which are being contested by the Company or
any Restricted Subsidiary in good faith, or deposits to obtain the release of
such Liens; (vii) immaterial encumbrances consisting of zoning restrictions,
licenses, easements and restrictions on the use of real property and minor
defects and irregularities in the title thereto; (viii) other immaterial (in the
aggregate) Liens incidental to the conduct of the Company's or any Restricted
Subsidiary's business or the ownership of its property other than for
indebtedness; (ix) banker's liens and rights of offset in the holders of
indebtedness such as commercial paper in the ordinary course of business; (x)
leasehold or purchase rights, exercisable for a fair consideration, in favor of
any Person which arise in transactions entered into in the ordinary course of
business; (xi) Liens on property or shares of stock of a corporation at the time
the corporation becomes a Restricted Subsidiary or merges into or consolidates
with the Company or a Restricted Subsidiary provided any such Lien is not
incurred in anticipation of such corporation becoming a Restricted Subsidiary or
the related merger or consolidation; (xii) Liens on property at the time the
Company or a Restricted Subsidiary acquires the property; (xiii) Liens in an
amount not to exceed in the aggregate $15,000,000 at any one time outstanding,
excluding Liens covered by clauses (i) through (xii) above; and (xiv) Liens
securing the indebtedness of the Company or a Restricted Subsidiary and the sum
of the following does not exceed 10% of Consolidated Net Tangible Assets: (a)
such indebtedness plus (b) other indebtedness of the Company and its Restricted
Subsidiaries secured by Liens on property of the Company and its Restricted
Subsidiaries, excluding indebtedness secured by a Lien existing as of the date
specified in the Indenture and excluding indebtedness secured by a Lien
permitted by one of clauses (i) through (xiii) above. (Section 5.04).
CONSOLIDATION, MERGER, AND SALE OF ASSETS
The Indenture provides that the Company will not consolidate with, sell or
lease all or substantially all its assets to, or merge with or into any other
corporation, or purchase all or substantially all the assets of another
corporation, unless (i) the Company shall be the continuing corporation, or the
successor, transferee or lessee corporation is organized under the laws of the
United States of America or any state thereof and assumes the Company's
obligations under the Securities and the Indenture and (ii) immediately after
giving effect to such transaction, no default will have occurred and be
continuing. A purchase by a Subsidiary of all or substantially all of the assets
of another corporation shall not be deemed to be a purchase of such assets by
the Company (Section 5.06). Notwithstanding the foregoing, if, upon any such
consolidation or merger of the Company with or into any other corporation, or
upon any conveyance of the property of the Company as an entirety or
substantially as an entirety to any other corporation, any properties of any
character owned by the Company immediately prior thereto would thereupon become
subject to any Lien, simultaneously with such consolidation, merger or
conveyance, effective provision will be made to secure the Securities
outstanding equally and ratably with the debt secured by such Lien (Section
14.01).
8
<PAGE> 10
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Trustee,
without the consent of the holders of the Securities, to, among other things,
establish the form and terms of any series of the Securities issuable thereunder
by one or more supplemental indentures, and, with the consent of the holders of
not less than 66 2/3% in the aggregate principal amount of the Securities then
outstanding which are affected thereby, to modify and alter the terms of the
Indenture or any supplemental indenture or the rights of the holders of the
Securities of any series to be affected, except that no such modification or
alteration may be made which will (i) extend the fixed maturity of any
Securities, or reduce the rate or extend the time of payment of interest
thereon, or reduce the amount of the principal thereof, or reduce any premium
payable upon the redemption thereof, or make the principal thereof or interest
or premium thereon payable in any coin or currency other than that provided in
the Securities, or impair the right to institute suit for the enforcement of any
such payment on or after the maturity thereof, without the consent of the holder
of each Indenture Security so affected, or (ii) reduce the percentage of
Securities of any series, the holders of which are required to consent to any
such supplemental indenture, without the consent of the holders of all the
Securities then outstanding, or (iii) modify, without the written consent of the
Trustee, the rights, duties or immunities of the Trustee (Sections 13.01 and
13.02).
DEFAULTS
The Indenture provides that events of default with respect to any series of
Securities will be (i) default for 30 days in payment of interest upon any
Indenture Security of such series; (ii) default in payment of principal (other
than on sinking fund redemption) or premium, if any, on any Indenture Security
of such series; (iii) default for 30 days in payment of any sinking fund
instalment when due by the terms of the Securities of such series; (iv) default,
for 90 days after written notice to the Company by the Trustee or the holders of
at least 25% in aggregate principal amount of the Securities of such series then
outstanding, in performance of any other covenant in the Indenture (other than a
covenant included in the Indenture solely for the benefit of a series of
Securities other than such series); (v) default under another instrument or in
respect of another series of Securities resulting in acceleration of maturity of
indebtedness of the Company in an amount exceeding $5,000,000 if such
acceleration is not rescinded or annulled, or such indebtedness shall not have
been discharged, within 10 days after written notice by the Trustee or the
holders of at least 10% in principal amount of the Securities of such series;
(vi) certain events in bankruptcy or insolvency; and (vii) the incurrence of any
other event of default with respect to Securities of such series (Section 6.01).
If an event of default with respect to Securities of any series should occur and
be continuing, either the Trustee or the holders of 25% of the principal amount
of outstanding Securities of such series may declare each Indenture Security of
that series due and payable (Section 6.02). The Company will be required to file
annually with the Trustee a statement of an officer as to the fulfillment by the
Company of its obligations under the Indenture during the preceding year
(Section 5.07).
Holders of a majority in principal amount of the outstanding Securities of
any series will be entitled to control certain actions of the Trustee under the
Indenture and to waive past defaults with respect to such series (Sections 6.02
and 6.06). Subject to the provisions of the Indenture relating to the duties of
the Trustee, the Trustee will not be under any obligation to exercise any of the
rights or powers vested in it by the Indenture at the request, order or
direction of any of the holders of Securities, unless one or more of such
holders of Securities shall have offered to the Trustee reasonable indemnity
(Section 10.01).
If an event of default occurs and is continuing with respect to a series of
Securities, any sums held or received by the Trustee under the Indenture may be
applied to reimburse the Trustee for its reasonable compensation and expenses
incurred prior to any payments to holders of Securities of such series (Section
6.05).
The right of any holder of Securities of any series to institute action for
any remedy is subject to certain conditions precedent, including a request to
the Trustee by the holders of not less than 25% in principal amount of the
Securities of that series outstanding to take action, and an offer to the
Trustee of reasonable indemnity against liabilities incurred by it in so doing
(Section 6.07).
9
<PAGE> 11
DEFEASANCE
The Indenture provides that if, any time after the date of the Indenture,
the Company shall deposit with the Trustee, in trust for the benefit of the
holders thereof, (i) funds sufficient to pay, or (ii) such amount of direct
obligations of the United States of America as will or will together with the
income thereon without consideration of any reinvestment thereof be sufficient
to pay, all sums due for principal of, premium, if any, and interest on the
Securities of a particular series, as they shall become due from time to time,
and certain other conditions are met, the Trustee shall cancel and satisfy the
Indenture with respect to such series to the extent provided therein. Such
defeasance is conditioned upon the Company's delivery of an opinion of counsel
that the holders of the Securities of such series will have no federal income
tax consequences as a result of such deposit (Section 11.02).
CONCERNING THE TRUSTEE
The Trustee is one of the banks participating in one revolving credit
agreement with the Company. In addition, the Trustee acts as trustee with
respect to an Indenture dated as of June 1, 1985 (with respect to certain other
of the Company's Medium-Term Notes).
PLAN OF DISTRIBUTION
The Company may offer the Securities directly or through underwriters,
dealers or agents.
If underwriters are used in the offering of Offered Securities, the names
of the managing underwriter or underwriters (expected to be or include Citicorp
Securities, Inc., Goldman, Sachs & Co., Lehman Brothers, Lehman Brothers Inc.,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated and
Salomon Brothers Inc) and any other underwriters, and the terms of the
transaction, including compensation of the underwriters and dealers, if any,
will be set forth in the Prospectus Supplement relating to such offering. Firms
not so named will have no direct or indirect participation in the underwriting
of such Offered Securities, although such a firm may participate in the
distribution of such Offered Securities under circumstances entitling it to a
dealer's allowance or agent's commission. It is anticipated that any
underwriting agreement pertaining to any Offered Securities will (1) entitle the
underwriters to indemnification by the Company against certain civil liabilities
under the Securities Act of 1933, as amended ("Securities Act"), (2) provide
that the obligations of the underwriters will be subject to certain conditions
precedent, and (3) provide that the underwriters generally will be obligated to
purchase all such Offered Securities if any are purchased.
The Company also may sell Offered Securities to a dealer, as principal. In
such event, the dealer may then resell such Offered Securities to the public at
varying prices to be determined by such dealer at the time of resale. The name
of the dealer and the terms of the transaction will be set forth in the
Prospectus Supplement relating thereto.
Offered Securities also may be offered through agents designated by the
Company from time to time. Any such agent will be named and the terms of any
such agency will be set forth, in the Prospectus Supplement or Pricing
Supplement relating thereto. Unless otherwise indicated in such Prospectus
Supplement or Pricing Supplement, any such agent will act on a best efforts
basis for the period of its appointment.
Dealers and agents named in a Prospectus Supplement may be deemed to be
underwriters (within the meaning of the Securities Act) of the Offered
Securities described therein and, under agreements which may be entered into
with the Company, may be entitled to indemnification by the Company against
certain civil liabilities under the Securities Act. Underwriters, dealers and
agents may engage in transactions with, or perform services for, the Company in
the ordinary course of business.
If so indicated in a Prospectus Supplement, the Company will authorize
underwriters or other agents of the Company to solicit offers by certain
institutions to purchase the Offered Securities from the Company pursuant to
contracts providing for payment and delivery at 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
10
<PAGE> 12
must be approved by the Company. The obligations of any purchaser under any such
contract will not be subject to any conditions except that (1) the purchase of
the Offered Securities shall not at the time of delivery be prohibited under the
laws of the jurisdiction to which such purchaser is subject and (2) if the
Offered Securities are also being sold to underwriters, the Company shall have
sold to such underwriters the Offered Securities not subject to delayed
delivery.
The anticipated date of delivery of Offered Securities will be set forth in
the Prospectus Supplement relating to the Offering of such Securities.
LEGAL MATTERS
The legality of the Securities being offered hereby will be passed upon for
the Company by William J. Hallinan, Esq., General Counsel of GFC Financial
Corporation and counsel to the Company. Brown & Wood will act as counsel for any
underwriters or agents.
EXPERTS
The financial statements of the Company incorporated in this Prospectus by
reference from the Company's Annual Report on Form 10-K for the year ended
December 31, 1993 have been audited by Deloitte & Touche, independent auditors,
as stated in their report, which is incorporated herein by reference, and have
been so incorporated in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
The consolidated balance sheets as of December 31, 1993 and 1992 and the
consolidated statements of income and cash flows for each of the three years in
the period ended December 31, 1993 of TriCon Capital Corporation-Predecessor
Business incorporated by reference in this prospectus, have been incorporated
herein in reliance on the report, which includes an explanatory paragraph for
certain accounting changes, of Coopers & Lybrand, independent certified public
accountants, given on the authority of that firm as experts in accounting and
auditing.
The financial statements of Fleet Factors Corporation (a wholly-owned
subsidiary of Fleet Financial Group, Inc.) appearing in the Company's Current
Report on Form 8-K dated February 14, 1994 have been audited by KPMG Peat
Marwick, independent auditors, as of the dates and for the periods indicated in
their report thereon included therein and incorporated herein by reference. Such
financial statements are incorporated herein in reliance on such report of KPMG
Peat Marwick, independent auditors, given upon the authority of said firm as
experts in accounting and auditing.
11
<PAGE> 13
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee....................... $344,830
Printing.................................................................. 50,000
Accounting services....................................................... 30,000
Fees and expenses of Trustee.............................................. 25,000
Rating agency fees........................................................ 300,000
Legal fees and expenses................................................... 50,000
Expenses of qualification under blue sky laws............................. 25,000
Miscellaneous............................................................. 1,170
--------
Total........................................................... $826,000
--------
--------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Certain directors and officers of the Registrant are, in specified
circumstances, indemnified under the Certificate of Incorporation of GFC
Financial Corporation and the General Corporation Law of the State of Delaware
against liability which they may incur in their capacities as such.
The Certificate of Incorporation of GFC Financial Corporation provides that
such a person shall be indemnified to the fullest extent authorized by the
General Corporation Law of the State of Delaware. The General Corporation Law of
the State of Delaware provides generally that indemnification of such a person
may be made if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. With respect to suits by or in the right of the
corporation such person may not be indemnified (unless and only to the extent a
court of competent jurisdiction shall determine that such indemnification is
appropriate) if he has been adjudged to be liable for negligence or misconduct
in the performance of his duty to the corporation.
In addition, under an insurance policy, the directors and officers of the
Registrant are indemnified, with various exclusions, against liability for
wrongful acts in such capacities, including negligence or breach of duty. The
principal exclusions from coverage are fines and penalties, liability based on
violation of pollution control laws, libel or slander, liability for illegal
personal profit or remuneration, ERISA violations and liability for deliberate
dishonesty.
ITEM 16. LIST OF EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NO. TITLE
- -------- --------------------------------------------------------------------------------
<S> <C> <C>
1. -- Form of Senior Debt Securities Purchase Agreement. *
1.1 -- Distribution Agreement between the Company and the Agents named therein dated
September 25, 1992.
1.1.2 -- Amendment No. 1 to Distribution Agreement dated September 25, 1992 between the
Company and the Agents named therein effective as of February 16, 1994.
4. -- Indenture between the Company and The Chase Manhattan Bank, N.A., as Trustee,
dated as of September 1, 1992.
5. -- Opinion and consent of William J. Hallinan, Esq., Vice President and General
Counsel of GFC Financial Corporation and counsel to the Company.
12. -- Computation of Ratio of Earnings to Fixed Charges (incorporated by reference to
Exhibit 12 to the Registrant's Annual Report on Form 10-K for the year ended
December 31, 1993).
23.1 -- Consent of Deloitte & Touche.
23.2 -- Consent of Coopers & Lybrand.
</TABLE>
II-1
<PAGE> 14
<TABLE>
<CAPTION>
EXHIBIT
NO. TITLE
- -------- --------------------------------------------------------------------------------
<S> <C> <C>
23.3 -- Consent of KPMG Peat Marwick.
23.4 -- Consent of William J. Hallinan, Esq. (included in Exhibit 5).
24. -- Power of Attorney -- included in Part II of this Registration Statement.
25. -- Form T-1 Statement of Eligibility of The Chase Manhattan Bank, N.A., as Trustee
under the Trust Indenture Act of 1939.
</TABLE>
- ---------------
* Previously filed with the Commission as Exhibit 1 to the Registrant's Form
S-3 Registration Statement (Registration No. 33-45640) and incorporated by
reference herein.
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement: (i) to
include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933; (ii) to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement; (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in the
Registration Statement; provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or 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; and
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining 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.
(c) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4), or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-2
<PAGE> 15
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company 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-3
<PAGE> 16
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT,
GREYHOUND FINANCIAL CORPORATION, CERTIFIES THAT IT HAS REASONABLE GROUNDS TO
BELIEVE THAT IT MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS
DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF PHOENIX, STATE OF
ARIZONA, ON THE 25 DAY OF MARCH, 1994.
GREYHOUND FINANCIAL CORPORATION
By: /s/ SAMUEL L. EICHENFIELD
Samuel L. Eichenfield
Chairman of the Board, President
and
Chief Executive Officer
------------------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Samuel L. Eichenfield, Robert J. Fitzsimmons and
William J. Hallinan, and each of them severally, his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection herewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or either of them, or
their or his substitutes or substitute, may lawfully do or cause to be done by
virtue hereof.
------------------------
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ ------------------------------ ------------------
<S> <C> <C>
/s/ SAMUEL L. EICHENFIELD Director, President and March 25, 1994
(Samuel L. Eichenfield) Chief Executive Officer
(Principal Executive Officer)
/s/ ROBERT J. FITZSIMMONS Director, Vice President- March 25, 1994
(Robert J. Fitzsimmons) Treasurer (Principal
Financial Officer)
/s/ BRUNO A. MARSZOWSKI Vice President-Controller March 25, 1994
(Bruno A. Marszowski) (Principal
Accounting Officer)
/s/ W. CARROLL BUMPERS Director March 25, 1994
(W. Carroll Bumpers)
/s/ GREGORY C. SMALIS Director, Senior Vice Presi- March 25, 1994
(Gregory C. Smalis) dent -- Portfolio Manager
</TABLE>
II-4
<PAGE> 17
EXHIBIT INDEX
<TABLE>
<CAPTION>
PAGE NO. IN
SEQUENTIALLY
NUMBERED
EXHIBIT REGISTRATION
NO. TITLE STATEMENT
- ------- ------------------------------------------------------------------- ------------
<C> <C> <S> <C>
1. -- Form of Senior Debt Securities Purchase Agreement*.
1.1 -- Distribution Agreement between the Company and the Agents named
therein dated September 25, 1992.
1.1.2 -- Amendment No. 1 to Distribution Agreement dated September 25, 1992
between the Company and the Agents named therein effective as of
February 16, 1994.
4. -- Indenture between the Company and The Chase Manhattan Bank, N.A.,
as Trustee, dated as of September 1, 1992.
5. -- Opinion and consent of William J. Hallinan, Esq., Vice President
and General Counsel of GFC Financial Corporation and counsel to the
Company.
12. -- Computation of Ratio of Earnings to Fixed Charges (incorporated by
reference to Exhibit 12 to the Registrant's Annual Report on Form
10-K for the year ended December 31, 1993).
23.1 -- Consent of Deloitte & Touche.
23.2 -- Consent of Coopers & Lybrand.
23.3 -- Consent of KPMG Peat Marwick.
23.4 -- Consent of William J. Hallinan, Esq. (included in Exhibit 5).
24. -- Power of Attorney -- included in Part II of this Registration
Statement.
25. -- Form T-1 Statement of eligibility and qualification of The Chase
Manhattan Bank, N.A., as Trustee under the Trust Indenture Act of
1939.
</TABLE>
- ---------------
* Previously filed with the Commission as Exhibit 1 to the Registrant's Form S-3
Registration Statement (Registration No. 33-45640) and incorporated by
reference herein.
II-5
<PAGE> 1
EXHIBIT 1.1
GREYHOUND FINANCIAL CORPORATION
$250,000,000
MEDIUM-TERM NOTES, SERIES B
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
September 25, 1992
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower
New York, New York 10281-1310
CITICORP SECURITIES MARKETS, INC.
55 Water Street, 47th Floor
New York, New York 10043
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
LEHMAN BROTHERS
Shearson Lehman Brothers Inc.
American Express Tower
World Financial Center
New York, New York 10281-1218
SALOMON BROTHERS INC
Seven World Trade Center
New York, New York 10048
Dear Sirs:
Greyhound Financial Corporation (the "Company") confirms its agreement with
each of you with respect to the issue and sale by the Company of up to
$250,000,000 aggregate principal amount (or the equivalent thereof in one or
more foreign or composite currencies) of its Medium-Term Notes, Series B (the
"Securities"). The Securities are to be issued pursuant to an indenture (the
"Indenture") dated as of September 1, 1992, between the Company and The Chase
Manhattan Bank, N.A., as trustee (the "Trustee").
Subject to the terms and conditions stated herein and subject to the
reservation by the Company of the right to sell Notes directly on its own behalf
at any time and to any investor or through other agents (provided that any other
agent will execute an agreement with the Company upon the same terms and
conditions as contained herein and that the Company will notify each party
hereto of its agreement with any other agents), the Company hereby (i) appoints
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Citicorp Securities Markets, Inc., Goldman, Sachs & Co., Lehman Brothers,
Shearson Lehman Brothers Inc. (including its affiliate, Lehman Special
Securities Inc.) and Salomon Brothers Inc, collectively as agents of the Company
for the purpose of soliciting purchases of the Securities from the Company by
others and (ii) agrees that whenever the Company determines to sell Securities
directly to you, or any one of you, as principal for resale to others, it will
enter into a Terms Agreement relating to such sale in accordance with the
provisions of Section 2(b) hereof.
As of the date hereof, the Company has authorized the issuance and sale of
up to $250,000,000 (or its equivalent based on the applicable exchange rate at
the time of issuance, in such foreign currencies or units of two or more
currencies as the Company shall designate at the time of issuance) aggregate
principal amount of
<PAGE> 2
Securities by the Company directly or through agents pursuant to the terms of
this Agreement. It is understood, however, that the Company may from time to
time pursuant to one or more indenture supplements to the Indenture, reduce the
authorized aggregate principal amount of the Securities (but not below the
aggregate principal amount of the Securities previously issued under the
Indenture) or authorize the issuance of additional Securities and that such
additional Securities may be distributed directly by the Company or through the
Agents pursuant to the terms of this Agreement, all as though the issuance of
such Notes were authorized as of the date hereof.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-51216) for the
registration of its Senior Debt Securities, including the Securities, and the
offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "1933 Act") and has filed such
amendments thereto, if any, as may have been required to the date hereof, and
will file such additional amendments thereto and such amended prospectuses as
may hereafter be required. Such registration statement has been declared
effective by the Commission, and the Indenture has been qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act").
Such registration statement (as amended, if applicable) and the prospectus
constituting a part thereof (including in each case all documents, if any,
incorporated or deemed to be incorporated by reference therein pursuant to the
1933 Act, the Securities Exchange Act of 1934, as amended (the "1934 Act"), or
otherwise, are hereinafter referred to as the "Registration Statement" and the
"Prospectus", respectively, except that if any revised prospectus shall be
provided to you by the Company for use in connection with the offering of the
Securities which is not required to be filed by the Company pursuant to Rule
424(b) under the 1933 Act, the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first provided to you for such use. All
references in this Agreement to financial statements and schedules and other
information which is "contained," "included" or "stated" in the Registration
Statement or the Prospectus (and all other references of like meaning) shall be
deemed to mean and include all such financial statements and schedules and other
information which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be; and all references
in this Agreement to amendments or supplements to the Registration Statement or
the Prospectus shall be deemed to mean and include the filing of any documents
under the 1934 Act after the date of this Agreement which is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be.
Section 1. Representation and Warranties. (a) The Company represents and
warrants to each of the Agents as of the date hereof, as of the Closing Time and
each Settlement Date hereinafter referred to, and as of the times referred to in
Sections 6(a) and 6(b) hereof (in each case the "Representation Date"), as
follows:
(i) Registration Statement and Prospectus. The Registration Statement
and the Prospectus, at the time the Registration Statement became
effective, complied, and as of the applicable Representation Date will
comply, in all material respects with the requirements of the 1933 Act, and
the rules and regulations thereunder (the "1933 Act Regulations") and the
1939 Act. The Registration Statement, at the time the Registration
Statement became effective did not, and at each time thereafter at which
any amendment to the Registration Statement becomes effective or any Annual
Report on Form 10-K is filed by the Company with the Commission and as of
the applicable Representation Date will not, contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus, at the time the Registration Statement became effective did
not, and as of the applicable Representation Date will not, contain an
untrue statement of a material fact or omit 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; provided,
however, that the representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Agent expressly for use in the
Registration Statement or Prospectus ("Agent Information") or to that part
of the Registration Statement which shall constitute the Statement of
Eligibility under the 1939 Act on Form T-1 (the "Form T-1") of the Trustee.
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(ii) Incorporated Documents. The documents incorporated by reference
in the Prospectus, at the time they were or hereafter are filed with the
Commission, complied with and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations thereunder (the
"1934 Act Regulations"), and, when read together and with the other
information in the Prospectus, at the time the Registration Statement
became, and any amendments thereto become, effective, did not and 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, in the light of the circumstances under which they were or are
made, not misleading.
(iii) Accountants. The accountants who certified the financial
statements included or incorporated by reference in the Prospectus are
independent public accountants with respect to the Company, its
subsidiaries and GFC Financial Corporation, a Delaware corporation,
("GFC"), as required by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements of the Company
and its consolidated subsidiaries included or incorporated by reference in
the Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries as at the dates indicated and the results of
their operations for the periods specified; and except as stated therein,
said financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis.
(v) Material Changes or Material Transactions. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein or contemplated thereby,
(A) there has been no material adverse change in the condition, financial
or otherwise, of the Company and its subsidiaries considered as one
enterprise or in the earnings, affairs or business prospects of the Company
and its subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business, and (B) there have been no material
transactions entered into by the Company or any of its subsidiaries other
than those in the ordinary course of business.
(vi) Due Incorporation and Good Standing. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware with corporate power and authority
to own, lease and operate its properties and conduct its business as
described in the Registration Statement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required or appropriate,
except where the failure of the Company to so qualify, in the aggregate,
will not have a material adverse effect on the consolidated financial
condition or combined operations of the Company and its Subsidiaries or of
the Company and its Restricted Subsidiaries (as those terms are defined in
the Indenture).
(vii) Subsidiaries. Each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and conduct
its business as described in the Registration Statement and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required or
appropriate, except where the failure of the Company to so qualify, in the
aggregate, will not have a material adverse effect on the consolidated
financial condition or combined operations of the Company and its
Subsidiaries or of the Company and its Restricted Subsidiaries; all of the
issued and outstanding capital stock of each such subsidiary has been duly
authorized and validly issued and is fully paid and nonassessable; and all
the capital stock of each such subsidiary is owned by the Company or its
affiliates, directly or through subsidiaries, free and clear of any
mortgage, pledge, lien, encumbrance, claim or equity.
(viii) Capital Stock. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus and the shares of
issued and outstanding Common Stock set forth thereunder have been duly
authorized and validly issued and are fully paid and nonassessable and GFC
and The Dial Corp own directly or indirectly all of the outstanding shares
of the Common Stock and Redeemable Preferred Stock, par value $10,000 per
share, respectively, which Common Stock and Redeemable Preferred Stock
constitute all of the issued and outstanding capital stock of the Company,
free and clear of any claims, liens, encumbrances or liabilities.
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(ix) No Defaults; Compliance with Laws; Regulatory Approvals. Neither
the Company nor any of its subsidiaries is in violation of its charter or
in default in the performance or observance of any obligations, agreements,
covenants or conditions, which alone or in the aggregate are material,
contained in any contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments, which alone or in the aggregate are material,
to which it is a party or by which it or any of them or their properties
may be bound; and the execution, delivery and performance of this
Agreement, the Indenture and each applicable Terms Agreement, if any, and
the consummation of the transactions contemplated herein and therein have
been duly authorized by all necessary corporate action and will not
conflict with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of its subsidiaries pursuant to any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, nor will such
action result in any violation of the provisions of the charter or by-laws
of the Company or, to the best of its knowledge, any law, administrative
regulation or administrative or court order or decree; and no consent,
approval, authorization, order or decree of any court or governmental
agency or body is required for the consummation by the Company of the
transactions contemplated by this Agreement, except such as may be required
under the 1933 Act, the 1939 Act, the 1933 Act Regulations or state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by you.
(x) Licenses. The Company and its subsidiaries own or possess or have
obtained all material governmental licenses, permits, consents, orders,
approvals and other authorizations necessary to lease or own, as the case
may be, and to operate their respective properties and to carry on their
respective businesses as presently conducted, except such as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by you.
(xi) Intangible Rights. The Company and its subsidiaries own or
possess adequate trademarks, service marks and trade names necessary to
conduct the business now operated by them, and neither the Company nor any
of its subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any trademarks, servicemarks
or trade names which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would reasonably be expected to
materially adversely affect the conduct of the business, operations,
financial condition or income of the Company and its subsidiaries
considered as one enterprise.
(xii) Legal Proceedings; Contracts. There is no action, suit or
proceeding before or by any court or governmental agency or body, domestic
or foreign, now pending, or, to the actual knowledge of the Company,
threatened against or affecting, the Company or any of its subsidiaries,
which would reasonably be expected to result in any material adverse change
in the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise, or in the business prospects of
the Company and its subsidiaries considered as one enterprise or might
materially and adversely affect the consummation of this Agreement; and
there are no material contracts or documents of the Company or any of its
subsidiaries which are required to be filed as exhibits to the Registration
Statement by the 1933 Act or by the 1933 Act Regulations which have not
been so filed.
(xiii) Labor Relations. No labor dispute with the employees of the
Company or any of its subsidiaries exists or, to the knowledge of the
Company, is imminent; and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its principal
suppliers, manufacturers or contractors which would be expected to result
in any material adverse change in the condition, financial or otherwise, or
in the earnings, affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(xiv) The Indenture. The Indenture has been duly and validly
authorized, executed and delivered by the Company and to the best of the
Company's knowledge, the Trustee; and the Indenture constitutes a legally
valid and binding obligation of the Company, enforceable in accordance with
its terms, except as
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limited by bankruptcy, insolvency, or other laws relating to or affecting
creditors' rights generally or by general equity principles.
(xv) The Securities. The Securities have been duly authorized for
issuance and sale pursuant to this Agreement and, when issued,
authenticated and delivered pursuant to the provisions of this Agreement
and the Indenture against payment of the consideration therefor specified
herein, the Securities will constitute valid and legally binding
obligations of the Company enforceable in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy, insolvency, or
other laws relating to or affecting creditors' rights generally or by
general equity principles, and will be entitled to the benefits provided by
the Indenture; the Securities and the Indenture conform in all material
respects to all statements relating thereto contained in the Registration
Statement; and, after giving effect to the sale of all Securities for which
the Company has accepted offers and the sale of any other securities
registered pursuant to the Registration Statement to be issued prior to the
delivery of the Securities relating to such acceptance, the aggregate
amount of securities which have been issued and sold by the Company
pursuant to the Registration Statement does not exceed $750,000,000.
(xvi) Liens. The Company and its subsidiaries have made all necessary
filings and taken all other necessary action so that, with respect to all
of the equipment and other property reflected in the consolidated balance
sheet of the Company and its consolidated subsidiaries as of June 30, 1992,
and all equipment and other property acquired by the Company or a
Restricted Subsidiary since then, the interest of the Company or of the
appropriate subsidiary in such equipment or other property is free and
clear, in all material respects, of any claims, liens, encumbrances or
liabilities not also reflected in such consolidated balance sheet and that
the interest of the Company or of the appropriate subsidiary has, in all
material respects, been perfected so as not to be subordinate to the claim
of a purchaser in due course or any other bona fide purchaser.
(xvii) Financing Contracts. The financing contracts reflected in the
consolidated balance sheet of the Company and its consolidated subsidiaries
as of June 30, 1992 and the financing contracts entered into by the Company
or a Restricted Subsidiary since then are legal, valid and binding
obligations of the obligors enforceable in accordance with their respective
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, or other laws relating to or affecting creditors' rights
generally or by general equity principles; the obligors thereunder are, in
the good faith business judgment of the Company and except to the extent
reflected or stated in the Prospectus, financially capable of performing
their respective obligations thereunder, and any defaults in the payments
under all such contracts in the aggregate, at the date hereof, are not of
such amount that, were no more payments to be received under the financing
contracts in respect of which such defaults exist, and after considering
estimated collateral values to be recovered, the consolidated financial
condition or operations of the Company and its consolidated subsidiaries,
or of the Company and the Restricted Subsidiaries, would be materially
adversely affected thereby.
(xviii) No Business Dealings in Cuba. The Company has complied with,
and is and will, at all times during which a Prospectus is required to be
delivered, be in compliance with, the provisions of that certain Florida
act relating to disclosure of doing business with Cuba, codified as Section
517.075 of the Florida statutes, and the rules and regulations thereunder
(collectively, the "Cuba Act") or is exempt therefrom.
(b) Any certificate signed by any officer of the Company and delivered to
any of you or to your counsel in connection with an offering of Securities shall
be deemed a representation and warranty by the Company to each of you as to the
matters covered thereby.
Section 2. Solicitations as Agent; Purchases as Principal.
(a) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, each of you severally agree, as agent of the Company, to use your best
efforts to solicit offers to purchase the Securities upon the terms and
conditions set forth in the
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Prospectus. Each of you are hereinafter sometimes referred to, in your capacity
as agent, as the "Agent" and you are referred to collectively as the "Agents."
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Securities commencing at any time, and from
time to time, for any period of time or permanently. Upon receipt of
instructions from the Company, you will forthwith suspend solicitation of
purchases from the Company until such time as the Company has advised you that
such solicitation may be resumed.
The Company agrees to pay to the applicable Agent a commission, in the form
of a discount from proceeds (or as otherwise agreed to by the Company and the
applicable Agent), equal to the applicable percentage of the principal amount of
each Security sold by the Company as a result of a solicitation made by such
Agent as set forth in Exhibit A hereto. The Agents may reallow up to a portion
of the commission payable pursuant to this Section 2(a) to dealers or purchasers
in connection with the offer and the sale of the Securities and, unless
otherwise specified in the applicable Prospectus Supplement, such reallowance to
any such dealer or purchaser shall not be in excess of 66 2/3% of the commission
to be received by such Agent from the Company.
The purchase price, interest rate, maturity date and other terms of the
Securities shall be agreed upon by the Company and the Agents and set forth in a
pricing supplement ("Pricing Supplement") to the Prospectus to be prepared
following each acceptance by the Company of an offer for the purchase of the
Notes. As an Agent, each of you are authorized to solicit orders for the
Securities only in denominations of $100,000 or any amount in excess thereof
which is an integral multiple of $1,000 at a purchase price equal to 100% of
their principal amount except as may be provided in a Pricing Supplement to the
Prospectus. You shall communicate to the Company, orally or in writing, each
reasonable offer to purchase Securities received by you as agent. The Company
shall have the sole right to accept offers to purchase the Securities and may
reject any such offer in whole or in part. You shall have the right to reject
any offer to purchase the Securities received by you in whole or in part, and
any such rejection shall not be deemed a breach of your agreement contained
herein.
(b) Purchases as Principal. Each sale of Securities to any of you as
principal shall be made in accordance with the terms of this Agreement and a
separate agreement which will provide for the sale of such Securities to, and
the purchase and reoffering thereof by, any or all of you. Each such separate
agreement (which shall be substantially with respect to the information, as
applicable, as is specified in Exhibit B hereto in the case of a purchase of the
Company's Fixed Rate Medium-Term Notes, or in Exhibit C hereto in the case of
the Company's Floating Rate Medium-Term Notes and which may take the form of an
exchange of any standard form of written telecommunication or oral communication
between you and the Company) is herein referred to as a "Terms Agreement."
Unless the context otherwise requires each reference contained herein to "this
Agreement" shall be deemed to include any Terms Agreement between the Company
and one or more of you. Your commitment to purchase Securities pursuant to any
Terms Agreement shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth. Each Terms Agreement shall
specify the principal amount of Securities to be purchased by you pursuant
thereto, the price to be paid to the Company for such Securities, the initial
public offering price, if any, at which the Securities are proposed to be
reoffered, and the time and place of delivery of and payment for such Securities
(the "Settlement Date"), and such other provisions (including further terms of
the Securities) as may be mutually agreed upon. The Agents may utilize a selling
or dealer group in connection with the resale of the Securities purchased. Such
Terms Agreement shall also specify any requirements for officers' certificates,
delivery of opinions of counsel and letters from independent public accountants
of the Company pursuant to Section 5 hereof on the related Settlement Date.
(c) Procedures. Administrative procedures respecting the sale of
Securities shall be agreed upon from time to time by the Agents, the Company and
the Trustee (the "Procedures"). Each Agent and the Company agrees to perform the
respective duties and obligations specifically provided to be performed by each
of them herein and in the Procedures.
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(d) Delivery of Closing Documents. The documents required to be delivered
by Section 5 hereof shall be delivered at the offices of the Company, Dial
Tower, 1850 North Central Avenue, Phoenix, Arizona 85004 on the date hereof, or
at such other time and place as you and the Company may agree upon in writing
(the "Closing Time").
Section 3. Covenants of the Company. The Company covenants with each of
you as follows:
(a) Revisions of Prospectus -- Material Changes. If at any time when the
Prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities any event shall occur or condition exist as a result of which
it is necessary, in the reasonable opinion of your counsel or counsel for the
Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to take the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the reasonable opinion
of either such counsel, at any such time to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, immediate notice shall be given, and confirmed
in writing, to you to cease the solicitation of offers to purchase the
Securities in your capacity as Agents and to cease sales of any Securities any
of you may then own as principal, and the Company will promptly prepare and file
with the Commission such amendment or supplement, whether by filing documents
pursuant to the 1934 Act, the 1933 Act or otherwise, as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
comply with such requirements. The Company will promptly cause each amendment or
supplement to the Prospectus to be filed with the Commission pursuant to Rule
424.
(b) Prospectus Revisions -- Periodic Financial Information. On or prior to
the date on which there shall be released to the general public interim
financial statement information related to the Company with respect to each of
the first three quarters of any fiscal year or preliminary financial statement
information with respect to any fiscal year, the Company shall furnish such
information to you, confirmed in writing, and shall cause the Prospectus to be
amended or supplemented, whether by the filing of documents pursuant to the 1934
Act, the 1933 Act or otherwise, to include or incorporate by reference capsule
financial information with respect to the results of operations of the Company
for the period between the end of the preceding fiscal year and the end of such
quarter or for such fiscal year, as the case may be, and corresponding
information for the comparable period of the preceding fiscal year, as well as
such other information and explanations as shall be necessary for an
understanding of such amounts or as shall be required by the 1933 Act or the
Regulations; provided, however, that if on the date of such release you shall
have suspended solicitation of purchases of the Securities in your capacity as
Agents pursuant to a request from the Company, and shall not then hold any
Securities as principal, the Company shall not be obligated so to amend or
supplement the Prospectus until such time as the Company shall determine that
solicitation of purchases of the Securities should be resumed or shall
subsequently enter into a new Terms Agreement with you.
(c) Prospectus Revisions -- Audited Financial Information. On or prior to
the date on which there shall be released to the general public financial
information included in or derived from the audited financial statements of the
Company for the preceding fiscal year, the Company shall cause the Registration
Statement and the Prospectus to be amended, whether by the filing of documents
pursuant to the 1934 Act, the 1933 Act or otherwise, to include or incorporate
by reference such audited financial statements and the report or reports, and
consent or consents to such inclusion or incorporation by reference, of the
independent accountants with respect thereto, as well as such other information
and explanations as shall be necessary for an understanding of such financial
statements or as shall be required by the 1933 Act or the 1933 Act Regulations;
provided, however, that if on the date of such release you shall have suspended
solicitation of purchases of the Securities in your capacity as Agents pursuant
to a request from the Company, and shall not then hold any Securities as
principal, the Company shall not be obligated so to amend or supplement the
Prospectus until such time as the Company shall determine that solicitation of
purchases of the Securities should be resumed or shall subsequently enter into a
new Terms Agreement with you.
(d) Earning Statements. The Company will make generally available to its
security holders as soon as practicable earnings statements (in form complying
with the provisions of Rule 158 under the 1933 Act)
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covering twelve month periods beginning, in each case, not later than the first
day of the Company's fiscal quarter next following the "effective date of the
Registration Statement" (as defined in Rule 158) with respect to each sale of
Securities. If such fiscal quarter is the last fiscal quarter of the Company's
fiscal year, such earnings statement shall be made available not later than 90
days after the close of the period covered thereby and in all other cases shall
be made available not later than 45 days after the close of the periods covered
thereby.
(e) Notice of Certain Proposed Filings. The Company will give you notice
of its intention to file any amendment to the Registration Statement or any
amendment or supplement to the Prospectus, whether by the filing of documents
pursuant to the 1934 Act, the 1933 Act or otherwise, and will furnish you with
copies of any such amendment or supplement or other documents proposed to be
filed a reasonable time in advance of filing and will not unless required by law
file any such amendment to which you have promptly objected in writing.
(f) Notice of Certain Events. The Company will notify you immediately (i)
of the effectiveness of any amendment to the Registration Statement, (ii) of the
mailing or the delivery to the Commission for filing of any supplement to the
Prospectus or any document to be filed pursuant to the 1934 Act which will be
incorporated by reference in the Prospectus, (iii) of the receipt of any
comments from the Commission with respect to the Registration Statement or the
Prospectus, (iv) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (v) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(g) Copies of the Registration Statement and the Prospectus. The Company
has delivered to your counsel at least one signed and will deliver to you as
many conformed copies of the Registration Statement (as originally filed) and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference in the Prospectus) as
you may reasonably request. The Company will furnish to you as many copies of
the Prospectus (as amended or supplemented) as you shall reasonably request so
long as you are required to deliver a Prospectus in connection with sales or
solicitations of offers to purchase the Securities.
(h) Preparation of Pricing Supplements. The Company will prepare, with
respect to any Securities to be sold through or to the Agents pursuant to this
Agreement, a Pricing Supplement with respect to such Securities in a form
previously approved by the Agents and will file such Pricing Supplement pursuant
to Rule 424(b)(3) under the 1933 Act not later than the close of business of the
Commission on the fifth business day after the date on which such Pricing
Supplement is first used.
(i) Copies of Annual and Financial Reports. The Company will furnish to
you, at the earliest time the Company makes the same available to others, copies
of its annual reports and other financial reports furnished or made available to
the public generally and, will furnish to you, from time to time, such other
information concerning the Company as you may reasonably request.
(j) State Securities Law Qualifications. The Company will endeavor, in
cooperation with you, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of the United
States as you may designate, and will maintain such qualifications in effect for
as long as may be required for the distribution of the Securities; provided,
however, that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified. The Company will file such statements and reports
as may be required by the laws of each jurisdiction in which the Securities have
been qualified as above provided. The Company will promptly advise you of the
receipt by the Company of any notifications with respect to the suspension of
the qualification of the Securities for sale in any such state or jurisdiction
or the initiating or threatening of any proceeding for such purpose.
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(k) 1934 Act Filing. The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14
or 15(d) of the 1934 Act.
(l) Stand-Off Agreement. Between the date of any Terms Agreement and the
Settlement Date with respect to such Terms Agreement, the Company will not,
without the prior consent of the Agent or Agents party to such Terms Agreement,
directly or indirectly offer or sell, or enter into any agreement to sell, or
announce the offering of any debt securities of the Company (other than the
Securities and bank debt) with terms substantially similar to the Securities
being purchased pursuant to such Terms Agreement, except as may otherwise be
provided in any such Terms Agreement.
(m) Use of Proceeds. The net proceeds from the sale of the Securities will
be used by the Company as described in the Prospectus.
(n) Cuba Indemnification. In accordance with the Cuba Act and without
limitation to the provisions of Sections 6 and 7 hereof, the Company agrees to
indemnify and hold harmless each Underwriter from and against any and all loss,
liability, claim, damage and expense whatsoever (including fees and
disbursements of counsel), as incurred, arising out of any violation by the
Company of the Cuba Act.
(o) Notes with Maturities in Excess of 30 Years. Prior to any time that
the Company offers or issues Notes with maturities in excess of thirty years,
the Company will deliver to the Agents an opinion of counsel, in form and
substance satisfactory to the Agents, to the effect that such Notes will be
treated as debt for United States federal income tax purposes.
Section 4. Payment of Expenses. The Company will pay the following
expenses incident to the performance of its obligations under this Agreement,
including: (i) the preparation and filing of the Registration Statement and all
amendments thereto, (ii) the preparation, issuance and delivery of the
Securities, including any fees and expenses relating to the use of book-entry
securities, (iii) the fees and disbursements of the Company's accountants and of
the Trustee and its counsel and of any calculation agent, (iv) the qualification
of the Securities under securities laws in accordance with the provisions of
Section 3(j), including filing fees and the fees and disbursements of one
counsel in connection therewith and in connection with the preparation of any
Blue Sky Survey and any Legal Investment Survey, (v) the printing and delivery
to you in quantities as hereinabove stated of copies of the Registration
Statement and all amendments thereto, and of the Prospectus and any amendments
or supplements thereto, (vi) the printing and delivery to you of copies of the
Indenture (and all amendments or supplements thereto) and any Blue Sky Survey
and any Legal Investment Survey, (vii) any fees charged by rating agencies for
the rating of the Securities, (viii) the fees and expenses, if any, incurred
with respect to any filing with the National Association of Securities Dealers,
Inc., (ix) the cost of printing or reproducing of this Agreement and any Terms
Agreement and (x) the fees and expenses of any Depositary and any nominees
thereof in connection with the Securities.
The Company shall also reimburse the Agents for the fees and disbursements
of one counsel for the Agents and any advertising and other out-of-pocket
expenses incurred with the approval of the Company.
Section 5. Conditions of Obligations. Each of your obligations to solicit
offers to purchase the Securities as Agents of the Company and each of your
obligations to purchase Securities pursuant to any Terms Agreement will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of the Company's officers made
in any certificate furnished pursuant to the provisions hereof, to the
performance and observance by the Company of all covenants and agreements herein
contained on its part to be performed and observed and to the following
additional conditions precedent:
(a) (1) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings 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 your and your counsel's reasonable satisfaction.
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(2) There shall not have come to your attention any facts that would
cause you to believe that the Prospectus, at the time it was required to be
delivered to a purchaser of the Securities, contained an untrue statement
of a material fact or omitted to state a material fact necessary in order
to make the statements therein, in light of the circumstances existing at
such time, not misleading.
(3) There shall not have occurred since the respective dates as of
which information is given in the Registration Statement, any material
adverse change in the condition, financial or otherwise, of the Company and
its subsidiaries considered as one enterprise, or in the earnings, affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business.
(4) There shall not have occurred any (i) outbreak or escalation of
hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in your
judgment, impracticable to market the Securities or enforce contracts for
the sale of the Securities, (ii) downgrading, nor any notice given of any
intended downgrading in the rating assigned by any nationally recognized
securities rating agency to any debt securities of the Company; or (iii)
suspension of trading in any securities of the Company by the Commission or
a national securities exchange, or if trading generally on either the
American Stock Exchange or the New York Stock Exchange has been suspended,
or minimum or maximum prices for trading have been fixed, or maximum ranges
for prices for securities have been required, by either of said exchanges
or by order of the Commission or any other governmental authority, or if a
banking moratorium has been declared by either Federal, California or New
York authorities or if a banking moratorium shall have been declared by the
relevant authorities in the country or countries of origin of any foreign
currency or currencies in which the Securities are denominated or payable.
(b) At the date hereof, at Closing Time and at each Settlement Date with
respect to any applicable Terms Agreement, if called for by such Terms
Agreement:
(1) Opinion of Company Counsel. You shall have received the opinion,
dated as of such time, of William J. Hallinan, Esq., Vice President and
General Counsel to GFC and counsel to the Company, in form and substance
satisfactory to you and your counsel, to the effect that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware.
(ii) The Company has corporate power and authority to own, lease
and operate its properties and conduct its business as described in the
Registration Statement.
(iii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, except where the failure of the Company
to so qualify, in the aggregate, will not have a material adverse effect
on the consolidated financial condition or combined operations of the
Company and its Subsidiaries or of the Company and its Restricted
Subsidiaries (as those terms are defined in the Indenture).
(iv) Each subsidiary of the Company has been duly incorporated and
is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has corporate power and corporate
authority to own, lease and operate its properties and conduct its
business as described in the Registration Statement, and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
except where the failure to so qualify, in the aggregate, will not have
a material adverse effect on the consolidated financial condition or
combined operations of the Company and its Subsidiaries or of the
Company and its Restricted Subsidiaries; and all of the issued and
outstanding capital stock of each such subsidiary has been duly
authorized and validly issued and is fully paid and nonassessable, and
all of such capital stock is owned by the Company or its affiliates,
free and clear of any mortgage, pledge, lien, encumbrance or claim.
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<PAGE> 11
(v) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus and the shares of issued and
outstanding Common Stock set forth therein have been duly authorized and
validly issued and are fully paid and nonassessable; GFC and The Dial
Corp own, directly or indirectly, all of the outstanding shares of the
Common Stock and Redeemable Preferred Stock, par value $10,000 per
share, respectively, which Common Stock and Redeemable Preferred Stock
constitute all of the issued and outstanding capital stock of the
Company, free and clear of any claims, liens and encumbrances.
(vi) This Agreement (and, if the opinion is being given pursuant to
Section 6(c) hereof on account of the Company having entered into a
Terms Agreement, the applicable Terms Agreement) has been duly
authorized, executed and delivered by the Company.
(vii) The Indenture has been duly and validly authorized, executed
and delivered by the Company and to such counsel's knowledge, the
Trustee; the Indenture constitutes a valid and binding agreement of the
Company, enforceable in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, or other laws relating
to or affecting creditors' rights generally or by general equity
principles.
(viii) The Securities are in due and proper form, have been duly
and validly authorized by all necessary corporate action for issuance,
offer and sale by the Company as contemplated by this Agreement and,
when executed, authenticated as specified in the Indenture and delivered
against payment of the consideration therefor in accordance with this
Agreement (and, if the opinion is being given pursuant to Section 6(c)
hereof on account of the Company having entered into a Terms Agreement,
the applicable Terms Agreement), will be valid and binding obligations
of the Company, enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, or other
laws relating to or affecting creditors' rights generally, or by general
equity principles, and each holder of Securities will be entitled to the
benefits of the Indenture.
(ix) The statements, if any, in the Prospectus under the captions
"Description of Notes" and "Description of Securities" insofar as they
purport to summarize certain provisions of documents specifically
referred to therein, are accurate summaries of the subject matter
thereof.
(x) The Indenture is qualified under the 1939 Act.
(xi) The Registration Statement is effective under the 1933 Act
and, to the best of such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued under
the 1933 Act or proceedings therefor have been initiated or threatened
by the Commission.
(xii) At the time the Registration Statement became effective and
as of the time of the applicable Terms Agreement, the Registration
Statement (other than the financial statements, schedules and other
financial and statistical data included therein, as to which no opinion
need be rendered) complied as to form in all material respects with the
requirements of the 1933 Act, the 1939 Act and the regulations of those
Acts; and nothing has come to such counsel's attention that would lead
such counsel to believe that (other than the financial statements,
schedules and other financial and statistical data included therein, the
Form T-1, and Agent Information, as to which no opinion need be
rendered) 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 of
the most recent such filing, 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, as of its date and Closing Time
or the Settlement Date, as the case may be, includes an untrue statement
of 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.
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<PAGE> 12
(xiii) There are no legal or governmental proceedings pending or to
the best knowledge of counsel threatened which are required to be
disclosed in the Registration Statement, other than those disclosed
therein, and all pending legal or governmental proceedings to which the
Company or any subsidiary is a party or of which any of their property
is the subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business, are
reasonably expected to be, alone or in the aggregate, not material.
(xiv) To the best of such counsel's knowledge, there are no
contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto other than
those described or referred to therein or filed or incorporated by
reference as exhibits thereto, the descriptions thereof or references
thereto are correct, and no default exists by the Company in the due
performance or observance of obligations, agreements, covenants or
conditions, which alone or in the aggregate are material, contained in
any contracts, indentures, loan agreements, notes, leases or other
instruments, which alone or in the aggregate are material, so described,
referred to, filed or incorporated by reference.
(xv) No consent, approval, authorization, or order of any court or
governmental authority or agency is required in connection with the sale
of the Securities, except such as may be required under the 1933 Act or
the 1933 Act Regulations or state securities laws; and the execution and
delivery of this Agreement (and, if the opinion is being given pursuant
to Section 6(c) hereof on account of the Company having entered into a
Terms Agreement, the applicable Terms Agreement) and the Indenture and
the consummation of the transactions contemplated herein and therein did
not and will not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any subsidiary
pursuant to, any contract, indenture, mortgage, loan agreement, note,
lease or other instrument known to such counsel and to which the Company
or any of its subsidiaries is a party or by which it or any of them may
be bound or to which any of the property or assets of the Company or any
of its subsidiaries is subject, or any law, administrative regulation or
administrative or court decree known to such counsel to be applicable to
the Company of any court or governmental agency, authority or body or
any arbitrator having jurisdiction over the Company; nor will such
action result in any violation of the provisions of the charter or
by-laws of the Company.
(xvi) Each document, if any, filed pursuant to the 1934 Act (other
than the financial statements, schedules and other financial and
statistical data included therein, as to which no opinion need be
rendered) and incorporated by reference in the Prospectus, complied when
filed as to form in all material respects with the 1934 Act and the 1934
Act Regulations thereunder.
(xvii) To the best knowledge of counsel, the Company and its
subsidiaries own or possess or have obtained adequate trademarks,
service marks and trade names necessary to conduct the business now
operated by them, and neither the Company nor any of its subsidiaries
has received any notice of infringement of or conflict with asserted
rights of others with respect to any trademarks, service marks or trade
names which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would reasonably be expected to
materially adversely affect the conduct of the business, operations,
financial condition or income of the Company and its subsidiaries
considered as one enterprise.
and to such further effect with respect to other legal matters relating to
this Agreement, the applicable Terms Agreement and the sale of the
Securities hereunder and thereunder as your counsel may reasonably request.
In giving such opinions such counsel may rely as to all matters of state
law other than the laws of the United States of America and the laws of the
General Corporation Law of the State of Delaware, and as to all matters of
foreign law, upon opinions of counsel satisfactory to your counsel, in
which case, the opinion shall state that although such counsel has not made
an independent investigation of the laws of states other than the General
Corporation Law of the State of Delaware or such foreign laws, such counsel
believes you and he are entitled so to rely. In giving the opinions
referred to in the foregoing clause (iv), such counsel may omit reference
to a foreign subsidiary as long as (A) he shall
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<PAGE> 13
have delivered to you a signed opinion of other counsel for such foreign
subsidiary, satisfactory to your counsel, which other opinion shall give
substantially the same opinions with respect to such foreign subsidiary as
required by the foregoing clause (iv), and (B) he states that such other
opinion is satisfactory to him and that although he has not made an
independent investigation of the foreign laws applicable to such foreign
subsidiary, he believes you are entitled to rely on such other opinion. Any
such opinion may be in the form and contain such assumptions,
qualifications and limitations as customarily appear in legal opinions
issued in the jurisdiction in which any such opinion is rendered.
(2) Opinion of Counsel to the Agents. You shall have received the
opinion of Brown & Wood, counsel to the Agents, covering the matters
referred to in subparagraph (1) under the subheadings (i), (vi), (vii),
(viii), (ix), (x), (xi) and (xii).
(c) Officers' Certificate. At Closing Time and at each Settlement Date
with respect to any Terms Agreement, there shall not have been, since the date
of such Terms Agreement or since the respective dates as of which information is
given in the Registration Statement and the Prospectus, any material adverse
change in the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise, or in the earnings, affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and you
shall have received a certificate of the President and Chief Executive Officer
or a Vice President of the Company and of the chief financial or chief
accounting officer of the Company, dated as of Closing Time or such Settlement
Date, to the effect (i) that there has been no such material adverse change,
(ii) that the other representations and warranties of the Company contained in
Section 1 hereof are true and correct with the same force and effect as though
expressly made at and as of the date of such certificate, (iii) that the Company
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the date of such certificate, and (iv)
that no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been initiated or
threatened by the Commission.
(d) Comfort Letter. At the date hereof, at Closing Time and at each
Settlement Date with respect to any Terms Agreement, if called for by such Terms
Agreement, you shall have received from Deloitte & Touche, a letter, dated as of
the Closing Time or on such Settlement Date in form and substance previously
agreed to by the Company and the Agents.
(e) Other Documents. At the date hereof, at Closing Time and at each
Settlement Date with respect to any applicable Terms Agreement, your counsel
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Securities as herein contemplated and related proceedings, or in
order to evidence the accuracy and completeness of any of the representations
and warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and
sale of the Securities as herein contemplated shall be satisfactory in form and
substance to you and your counsel.
Section 6. Additional Covenants of the Company. The Company covenants and
agrees with each of you that:
(a) Reaffirmation of Representations and Warranties. Each acceptance by it
of an offer for the purchase of Securities, and each sale of Securities to you
pursuant to a Terms Agreement, shall be deemed to be an affirmation that the
representations and warranties of the Company contained in this Agreement and in
any certificate theretofore delivered to you pursuant hereto are true and
correct at the time of such acceptance or sale, as the case may be, and an
undertaking that such representations and warranties will be true and correct at
the time of delivery to the purchaser or his agent, or you, of the Securities or
Security relating to such acceptance or sale, as the case may be, as though made
at and as of each such time (and it is understood that such representations and
warranties shall relate to the Registration Statement and the Prospectus as
amended and supplemented to each such time);
(b) Subsequent Delivery of Certificates. Each time that the Registration
Statement or the Prospectus shall be amended or supplemented (other than by an
amendment or supplement providing solely for a change in the interest rates of
the Securities or a change in the principal amount of Securities remaining to be
sold or
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<PAGE> 14
similar changes) or there is filed with the Commission any document incorporated
by reference into the Prospectus, the Company shall furnish or cause to be
furnished to you forthwith a certificate in form satisfactory to you to the
effect that the statements contained in the certificates referred to in Section
5(c) hereof which were last furnished to you are true and correct at the time of
such amendment or supplement or filing or sale, as the case may be, as though
made at and as of such time (except that such statements shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, certificates of the
same tenor as the certificates referred to in said Section 5(c), modified as
necessary to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such certificates;
(c) Subsequent Delivery of Legal Opinions. Each time that the Registration
Statement or the Prospectus shall be amended or supplemented or there is filed
with the Commission any document incorporated by reference into the Prospectus
(other than by an amendment or supplement providing solely for a change in the
interest rates of the Securities or a change in the principal amount of
Securities remaining to be sold or similar changes) the Company shall furnish or
cause to be furnished forthwith to you and your counsel a written opinion of
William J. Hallinan, Esq., Vice President and General Counsel to GFC and counsel
to the Company, or other counsel satisfactory to you, dated the date of delivery
of such opinion, in form satisfactory to you, of the same tenor as the opinion
referred to in Section 5(b) hereof but modified, as necessary, to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such opinion or, in lieu of such opinion, counsel last
furnishing such opinion to you shall furnish you with a letter to the effect
that you may rely on such last opinion to the same extent as though it was dated
the date of such letter authorizing reliance (except that statements in such
last opinion shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such letter
authorizing reliance); and
(d) Subsequent Delivery of Comfort Letters. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information or there is filed with the Commission
any document incorporated by reference into the Prospectus which contains
additional financial information, the Company shall cause the independent public
accountants of the Company forthwith to furnish you a letter, dated the date of
filing of such amendment, supplement or document with the Commission, or the
date of such sale, as the case may be, in form satisfactory to you, of the same
tenor as the letter referred to in Section 5(d) hereof but modified to relate to
the Registration Statement and Prospectus, as amended and supplemented to the
date of such letter, and with such changes as may be necessary to reflect
changes in the financial statements and other information derived from the
accounting records of the Company; provided, however, that if the Registration
Statement or the Prospectus is amended or supplemented solely to include
financial information as of and for a fiscal quarter, the independent public
accountants of the Company may limit the scope of such letter to the unaudited
financial statements included in such amendment or supplement unless any other
information included therein of an accounting, financial or statistical nature
is of such a nature that, in your reasonable judgment, such letter should cover
such other information.
(e) Conditions Precedent to Purchaser's Obligations. The Company agrees
that any obligation of a person who has agreed to purchase Securities to make
payment for and take delivery of such Securities shall be subject to the
satisfaction, at the time of delivery to such person, of each of the conditions
set forth in Section 5(a) hereof.
Section 7. Indemnification. (a) The Company agrees to indemnify and hold
harmless each of you and each person, if any, who controls each of you within
the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus (or
any amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact
14
<PAGE> 15
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, unless such
untrue statement or omission or such alleged untrue statement or omission
was made in reliance upon and in conformity with written information
furnished to the Company by any of you expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto);
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission (except as made in reliance upon and
in conformity with information furnished by any of you as aforesaid) if
such settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred, (including
the fees and disbursements of counsel chosen by you); as incurred,
reasonably incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission (except as made in reliance upon and in conformity with
information furnished by any of you as aforesaid), to the extent that any
such expense is not paid under (i) or (ii) above.
(b) Each of you severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto) or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Agent expressly for use in the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. An indemnifying party may participate at its own
expense in the defense of such action. In no event shall the indemnifying
parties be liable for the fees and expenses of more than one counsel (in
addition to one local counsel per jurisdiction) separate from their own counsel
for all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
Section 8. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 7 is for any reason held to be unenforceable with respect to the
indemnified parties although applicable in accordance with its terms, the
Company and you shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and you, as incurred, in such proportions that you are
each responsible for that portion represented by the percentage that the total
commissions and underwriting discounts received by you individually to the date
of such liability bears to the total sales price received by the Company from
your sale of Notes to the date of such liability, and the Company is responsible
for the balance; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. Furthermore, in no event shall any of you be required to
contribute an amount in excess of the total commissions and underwriting
discounts received by you, individually, in connection with the transactions
contemplated by this Agreement. For purposes of this Section, each person, if
any, who controls each of you within the meaning of Section 15 of the 1933 Act
shall have the same rights to contribution as each of you, and each director of
the Company, each officer of the Company who signed the Registration
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<PAGE> 16
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as the
Company.
Section 9. Status of Agent. In soliciting purchases of the Securities from
the Company as Agents, the Agents are acting individually and not jointly and
are acting solely as agents for the Company and not as principals. Each Agent
will make reasonable efforts to assist the Company in obtaining performance by
each purchaser whose offer to purchase Securities from the Company has been
solicited by such Agent and accepted by the Company, but such Agent shall not
have any liability to the Company in the event any such purchase is not
consummated for any reason.
Section 10. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or any Terms Agreement, or contained in certificates of officers of
the Company submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any of you
or any controlling person of any of you, or by or on behalf of the Company, and
shall survive each delivery of and payment for any of the Securities.
Section 11. Termination. This Agreement may be terminated for any reason,
at any time by the Company as to any of you, or by any of you insofar as this
Agreement relates to such of you, upon the giving of 30 days' written notice of
such termination to the other parties hereto. Each of you may also terminate any
Terms Agreement to which you are a party, immediately upon notice to the
Company, at any time prior to the Settlement Date relating thereto upon the
terms and conditions contained in such Terms Agreement or in the event that any
condition specified in Section 5 shall not have been fulfilled. In the event of
any such termination, no party will have any liability to any other party
hereto, except that (i) a terminating Agent shall be entitled to any commissions
earned by it in accordance with the third paragraph of Section 2(a) hereof, (ii)
if at the time of termination (A) you shall own any of the Securities with the
intention of reselling them or (B) an offer to purchase any of the Securities
has been accepted by the Company but the time of delivery to the purchaser or
his agent of the Securities or Securities relating thereto has not occurred, the
covenants set forth in Sections 3 and 6 hereof shall remain in effect until such
Securities are so resold or delivered, as the case may be, (iii) the covenant
set forth in Section 3(d) hereof, the provisions of Section 4 hereof, the
indemnity and contribution agreement set forth in Sections 7 and 8 hereof, and
the provisions of Sections 10 and 14 hereof shall remain in effect, and (iv) a
termination instituted by any one Agent shall only be effective with regard to
such Agent and shall not affect the rights or obligations of the parties
remaining in this Agreement or any Terms Agreement.
Section 12. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication to the addresses
hereinafter set forth or such other addresses as may be specified in writing in
accordance herewith. Notices to the Agents shall be directed as follows:
If to Merrill Lynch & Co.:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower, 10th Floor
World Financial Center
New York, New York 10281-1310
Attention: MTN Products Management
Telecopy: (212) 449-2234
16
<PAGE> 17
If to Citicorp Securities Markets, Inc.:
Citicorp Securities Markets, Inc.
55 Water Street
4th Floor
New York, New York 10043
Attention: Capital Markets Department
Telecopy: (212) 291-0196
If to Lehman Brothers:
Shearson Lehman Brothers Inc.
American Express Tower
World Financial Center
9th Floor
New York, New York 10285-0900
Attention: Medium-Term Note Department
Telecopy: (212) 528-7035
If to Goldman, Sachs & Co.:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Registration Department
If to Salomon Brothers Inc:
Salomon Brothers Inc.
Seven World Trade Center
New York, New York 10048
Attention: Medium-Term Notes Department
Telecopy: (212) 783-3350
Notices to the Company shall be directed as follows:
Greyhound Financial Corporation
Dial Tower
1850 North Central Avenue
Phoenix, Arizona 85004
Attention: Robert J. Fitzsimmons,
Vice President-Treasurer.
Telecopy: (602) 207-4099
Section 13. Parties. This Agreement and any Terms Agreement shall inure to
the benefit of and be binding upon each of you (or such one of you who is a
party to such Terms Agreement) and the Company and their respective successors.
Nothing expressed in this Agreement or any Terms Agreement is intended or shall
be construed to give any person, firm or corporation, other than the parties
hereto and their respective successors, the controlling persons and officers and
directors referred to in Sections 7 and 8 and their heirs and legal
representatives, and any person who has agreed to purchase Securities from the
Company with respect to the conditions to any such person's obligation to make
payment for and take delivery of such securities to the extent provided in
Section 6(e), any legal or equitable right, remedy or claim under or in respect
of this Agreement or any Terms Agreement or any provision herein or therein
contained. This Agreement and any Terms Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties hereto and their respective successors and said
controlling persons and officers
17
<PAGE> 18
and directors and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Securities shall be deemed
to be a successor by reason merely of such purchase.
Section 14. Governing Law. This Agreement and the rights and obligations
of the parties created hereby shall be governed by the laws of the State of New
York.
[The remainder of this page
intentionally left blank]
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<PAGE> 19
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
each of you and the Company in accordance with its terms.
Very truly yours,
GREYHOUND FINANCIAL CORPORATION
By: /s/ SAMUEL L. EICHENFIELD
Samuel L. Eichenfield
Chairman of the Board,
President and Chief
Executive Officer
CONFIRMED AND ACCEPTED, as of
the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ WYLIE A. COLLINS
Wylie A. Collins
CITICORP SECURITIES MARKETS, INC.
By: /s/ JOHN WETZLER
John Wetzler
Goldman, Sachs & Co.
SHEARSON LEHMAN BROTHERS INC.
By: /s/ ROBERT R. LIND
Robert R. Lind
SALOMON BROTHERS INC
By: /s/ SUSAN DUNN
Susan Dunn
19
<PAGE> 20
EXHIBIT A
TO FORM OF
DISTRIBUTION AGREEMENT
COMMISSION SCHEDULE
<TABLE>
<CAPTION>
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
- --------------------------------------------------------------------------- ----------------
<S> <C>
From 9 months but less than 1 year......................................... .125%
From 1 year but less than 18 months........................................ .150
From 18 months but less than 2 years....................................... .200
From 2 years but less than 3 years......................................... .250
From 3 years but less than 4 years......................................... .350
From 4 years but less than 5 years......................................... .450
From 5 years but less than 6 years......................................... .500
From 6 years but less than 7 years......................................... .550
From 7 years but less than 10 years........................................ .600
From 10 years but less than 15 years....................................... .625
From 15 years but less than 20 years....................................... .700
From 20 years but less than 30* years...................................... .750
</TABLE>
- ---------------
* Commission on Notes with maturities of 30 years or more shall be agreed to by
the Company and the applicable Agent at the time of such trade.
A-1
<PAGE> 21
EXHIBIT B
TO
DISTRIBUTION AGREEMENT
FORM OF
GREYHOUND FINANCIAL CORPORATION
(A DELAWARE CORPORATION)
FIXED RATE
MEDIUM-TERM NOTES, SERIES B
TERMS AGREEMENT
, 19
Greyhound Financial Corporation
Dial Tower
Phoenix, Arizona 85004
Attention: Vice President-Treasurer
Re: Distribution Agreement
dated September 25, 1992
The undersigned agrees to purchase the following principal amount of
securities: $
Stated Maturity Date:
Original Issue Date:
Trade Date:
Issue Price: %
Underwriter's Discount or Commission:
Settlement Date and Time:
ADDITIONAL TERMS:
Interest Rate:
Interest Payment Dates:
Day Count Convention:
30/360 for the period from to .
Actual/360 for the period from to .
Actual/Actual for the period from to .
IF REDEEMABLE:
Redemption Date:
IF REPAYABLE:
Optional Repayment Date(s):
Repayment Price:
B-1
<PAGE> 22
CURRENCY:
Specified Currency (if other than U.S. dollars):
Minimum Denominations:
Exceptions, if any, to Section 3(l) of the Distribution Agreement:
The certificate referred to in Section 5(c) of the Distribution Agreement,
the opinions referred to in Section 5(b) of the Distribution Agreement and the
accountants' letter referred to in Section 5(d) of the Distribution Agreement
will be required.
Name of Purchaser
By------------------------------------
Title
Accepted:
GREYHOUND FINANCIAL CORPORATION
By -----------------------------------
Title
B-2
<PAGE> 23
EXHIBIT C
TO
DISTRIBUTION AGREEMENT
FORM OF
GREYHOUND FINANCIAL CORPORATION
(A DELAWARE CORPORATION)
FLOATING RATE
MEDIUM-TERM NOTES, SERIES B
TERMS AGREEMENT
, 19
Greyhound Financial Corporation
Dial Tower
Phoenix, Arizona 85004
Attention: Vice President-Treasurer
Re: Distribution Agreement dated
September 25, 1992
The undersigned agrees to purchase the following principal amount of
Securities: $
Stated Maturity Date:
Original Issue Date:
Trade Date:
Issue Price: %
Underwriter's Discount or Commission:
Settlement Date and Time:
ADDITIONAL TERMS:
Interest Calculation:
Regular Floating Rate Note
Floating Rate/Fixed Rate Note
Fixed Interest Rate:
Fixed Rate Commencement Date:
Inverse Floating Rate Note
Fixed Interest Rate:
Interest Rate Basis:
Initial Interest Rate:
Initial Interest Reset Date:
Spread and/or Spread Multiplier, if any:
Interest Reset Dates:
C-1
<PAGE> 24
Interest Payment Date(s):
Regular Record Dates:
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Calculation Agent:
Day Count Convention:
Actual/360 for the period from to .
Actual/Actual for the period from to .
Other
If Redeemable:
Redemption Date:
If Repayable:
Optional Repayment Date(s):
Repayment Price:
Currency:
Specified Currency (if other than U.S. dollars):
Minimum Denominations:
Exceptions, if any, to Section 3(l) of the Distribution Agreement:
The certificate referred to in Section 5(c) of the Distribution Agreement,
the opinions referred to in Section 5(b) of the Distribution Agreement and the
accountants' letter referred to in Section 5(d) of the Distribution Agreement
will be required.
Name of Purchaser
By
------------------------------------
Title
Accepted:
GREYHOUND FINANCIAL CORPORATION
By
-----------------------------------
Title
C-2
<PAGE> 1
EXHIBIT 1.1.2
GREYHOUND FINANCIAL CORPORATION
$250,000,000
MEDIUM-TERM NOTES, SERIES B
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
February 16, 1994
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower, 23rd Floor
World Financial Center
New York, New York 10281-1323
CITICORP SECURITIES, INC.
399 Park Avenue
New York, New York 10043
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
LEHMAN BROTHERS
Lehman Brothers Inc.
3 World Financial Center
New York, New York 10281-1200
SALOMON BROTHERS INC
Seven World Trade Center
New York, New York 10048
Re: Amendment No. 1 to Distribution
Agreement dated September 25, 1992
Dear Sirs:
Reference is hereby made to the Distribution Agreement, dated September 25,
1992 (the "Distribution Agreement"), among Greyhound Financial Corporation, a
Delaware corporation (the "Company") and Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch"), Citicorp Securities, Inc. (formerly Citicorp
Securities Markets, Inc.), Goldman, Sachs & Co., Lehman Brothers, Lehman
Brothers Inc. (formerly, Shearson Lehman Brothers Inc.) (including its
affiliate, Lehman Special Securities Inc.) and Salomon Brothers Inc as Agents
with respect to the issue and sale by the Company of its Medium-Term Notes,
Series B, described therein. Terms not otherwise defined herein shall have the
meanings ascribed to them in the Distribution Agreement.
Pursuant to the third introductory paragraph of the Distribution Agreement,
the Company hereby delivers to you an original copy of the Officers' Certificate
delivered to the Trustee on the date hereof pursuant to Section 2.02 of the
Indenture authorizing the issuance of $200,000,000 aggregate principal amount of
Notes, in addition to $50,000,000 aggregate principal amount of Notes previously
authorized for issuance but
<PAGE> 2
remaining unissued as of the date hereof; provided that, in calculating the
aggregate principal amount of Notes authorized, with respect to Notes issued at
a discount to face, the initial offering price shall be used, and with respect
to Notes issued at a premium to face, the face amount of such Notes shall be
used.
The parties hereto agree that the Distribution Agreement is amended as
follows:
1. Clauses (viii), (ix), (x), (xvi) and (xvii) are restated in their
entirety as follows:
"(viii) Capital Stock. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus and the shares of
issued and outstanding Common Stock set forth thereunder have been duly
authorized and validly issued and are fully paid and nonassessable and
GFC owns directly or indirectly all of the outstanding shares of the
Common Stock and Redeemable Preferred Stock, par value $10,000 per
share, which Common Stock and Redeemable Preferred Stock constitute all
of the issued and outstanding capital stock of the Company, free and
clear of any claims, liens, encumbrances or liabilities.
(ix) No Defaults; Compliance with Laws; Regulatory Approvals. Neither
the Company nor any of its subsidiaries is in violation of its charter
or in default in the performance or observance of any obligations,
agreements, covenants or conditions, which alone or in the aggregate are
material, contained in any contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments, which alone or in the
aggregate are material, to which it is a party or by which it or any of
them or their properties may be bound; and the execution, delivery and
performance of this Agreement, the Indenture and each applicable Terms
Agreement, if any, and the consummation of the transactions contemplated
herein and therein have been duly authorized by all necessary corporate
action and will not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to any material contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Company or
any of its subsidiaries is a party or by which it or any of them may be
bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject, nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or,
to the best of its knowledge, any law, administrative regulation or
administrative or court order or decree; and no consent, approval,
authorization, order or decree of any court or governmental agency or
body is required for the consummation by the Company of the transactions
contemplated by this Agreement, except such as may be required under the
1933 Act, the 1939 Act, the 1933 Act Regulations or state securities or
Blue Sky laws in connection with the purchase and distribution of the
Securities by you.
(x) Licenses. The Company and its subsidiaries own or possess or have
obtained, can obtain on reasonable terms or are in the process of
obtaining, all material governmental licenses, permits, consents,
orders, approvals and other authorizations necessary to lease or own, as
the case may be, and to operate their respective properties and to carry
on their respective businesses as presently conducted, except such as
may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by you.
(xvi) Liens. The Company and its subsidiaries have made all necessary
filings and taken all other necessary action so that, with respect to
all of the equipment and other property reflected in the consolidated
balance sheet of the Company and its consolidated subsidiaries as of
September 30, 1993, and all equipment and other property acquired by the
Company or a Restricted Subsidiary since then, the interest of the
Company or of the appropriate subsidiary in such equipment or other
property is free and clear, in all material respects, of any claims,
liens, encumbrances or liabilities not also reflected in such
consolidated balance sheet and that the interest of the Company or of
the appropriate subsidiary has, in all material respects, been perfected
so as not to be subordinate to the claim of a purchaser in due course or
any other bona fide purchaser.
(xvii) Financing Contracts. The financing contracts reflected in the
consolidated balance sheet of the Company and its consolidated
subsidiaries as of September 30, 1993 and the financing contracts
2
<PAGE> 3
entered into by the Company or a Restricted Subsidiary since then are
legal, valid and binding obligations of the obligors enforceable in
accordance with their respective terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, or other laws relating to or
affecting creditors' rights generally or by general equity principles;
the obligors thereunder are, in the good faith business judgment of the
Company and except to the extent reflected or stated in the Prospectus,
financially capable of performing their respective obligations
thereunder, and any defaults in the payments under all such contracts in
the aggregate, at the date hereof, are not of such amount that, were no
more payments to be received under the financing contracts in respect of
which such defaults exist, and after considering estimated collateral
values to be recovered, the consolidated financial condition or
operations of the Company and its consolidated subsidiaries, or of the
Company and the Restricted Subsidiaries, would be materially adversely
affected thereby, excluding impairment of related reserves."
Your signature below will signify your acknowledgement as of the date
hereof of the Company's appointment of you as Agents with respect to the above
referenced $250,000,000 aggregate principal amount of Notes (calculated as
aforesaid) pursuant to the terms and conditions of the Distribution Agreement,
and to the amendments to the Distribution Agreement as set forth above.
This Amendment No. 1 to the Distribution Agreement may be executed in
several counterparts, each of which shall be deemed an original hereof.
Very truly yours,
GREYHOUND FINANCIAL CORPORATION
By: /s/ SAMUEL L. EICHENFIELD
------------------------------------
Samuel L. Eichenfield
Chairman of the Board,
President and Chief
Executive Officer
Accepted:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ SCOTT G. PRIMROSE
----------------------------------
Scott G. Primrose,
Authorized Signatory
CITICORP SECURITIES INC.
By: /s/ JOHN WETZLER
----------------------------------
John Wetzler
3
<PAGE> 4
GOLDMAN, SACHS & CO.
/s/ FREDERICK KNECHT
- --------------------------------------
Frederick Knecht
LEHMAN BROTHERS INC.
By: /s/ HENRY MCDADE
----------------------------------
Henry McDade,
Managing Director
SALOMON BROTHERS INC
By: /s/ PAMELA KENDALL
----------------------------------
Pamela Kendall,
Vice President
4
<PAGE> 1
EXHIBIT 4
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
GREYHOUND FINANCIAL CORPORATION
AND
THE CHASE MANHATTAN BANK, N.A.
TRUSTEE
------------------------
INDENTURE
DATED AS OF SEPTEMBER 1, 1992
------------------------
PROVIDING FOR THE ISSUANCE OF
SENIOR DEBT SECURITIES
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
This Cross Reference Sheet, showing the location in the Indenture of the
provisions inserted pursuant to Section 310-318(a), inclusive, of the Trust
Indenture Act of 1939, is not to be considered a part of the Indenture.
TRUST INDENTURE ACT CROSS REFERENCE SHEET
<TABLE>
<CAPTION>
SECTIONS OF TRUST SECTIONS OF
INDENTURE ACT INDENTURE
- ----------------------------------------------------------------------------- ---------------
<S> <C>
310(a)(1).................................................................. 10.06
310(a)(2).................................................................. 10.06
310(a)(3).................................................................. Not applicable
310(a)(4).................................................................. Not applicable
310(b)..................................................................... 10.07
311........................................................................ 10.03
312........................................................................ 9.02
313........................................................................ 9.03
314(a)..................................................................... 9.04
314(b)..................................................................... Not applicable
314(c)..................................................................... 14.03
314(d)..................................................................... Not applicable
314(e)..................................................................... 14.03
315(a)..................................................................... 10.01
315(b)..................................................................... 10.11
315(c)..................................................................... 10.01
315(d)..................................................................... 10.01
315(e)..................................................................... 6.08
316(a)..................................................................... 6.06 and 7.03
316(b)..................................................................... 6.07
317(a)..................................................................... 6.03 and 6.04
317(b)..................................................................... 5.03
318(a)..................................................................... 14.05
</TABLE>
<PAGE> 3
TABLE OF CONTENTS*
------------------------
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
PARTIES............................................................................... 1
RECITALS:
Authority of the Company to borrow money and issue obligations...................... 1
Corporate action taken to authorize issue of Securities............................. 1
Corporate action taken to authorize execution of Indenture.......................... 1
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Terms, unless otherwise defined, to have meanings assigned in Trust
Indenture Act of 1939................................................ 1
SECTION 1.02. Definitions:
Act.................................................................. 1
Authenticating Agent................................................. 1
Board Resolution..................................................... 2
Business Day......................................................... 2
Commission........................................................... 2
Company.............................................................. 2
Depositary........................................................... 2
Event of default..................................................... 2
Indenture............................................................ 3
Interest Payment Date................................................ 3
Lien................................................................. 3
Mandatory Sinking Fund Payment....................................... 3
Maturity............................................................. 3
Officers' Certificate................................................ 3
Opinion of Counsel................................................... 3
Optional Sinking Fund Payment........................................ 3
Outstanding.......................................................... 3
Person............................................................... 4
Principal Office of the Trustee...................................... 4
Record Date.......................................................... 4
Redemption Date...................................................... 4
Redemption Price..................................................... 4
Responsible Officers................................................. 4
Restricted Subsidiary................................................ 5
Security............................................................. 5
Security Co-Registrar................................................ 5
Security Register; Security Registrar................................ 5
Securityholder; holder of Securities;................................ 5
holder; registered holder............................................ 5
Stated Maturity...................................................... 5
Subsidiary........................................................... 5
Trustee.............................................................. 5
Trust Indenture Act.................................................. 5
Unrestricted Subsidiary.............................................. 5
Voting Stock......................................................... 6
ARTICLE TWO
FORM, EXECUTION, DELIVERY, TRANSFER
AND EXCHANGE OF SECURITIES
SECTION 2.01. Forms generally...................................................... 6
Record dates......................................................... 6
Place of payment, denominations and numbering of Securities.......... 6
</TABLE>
- ---------------
* The Table of Contents is not part of the Indenture.
i
<PAGE> 4
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 2.02. Terms of series...................................................... 6
SECTION 2.03. Certificate of authentication necessary to make Securities valid..... 8
SECTION 2.04. Form of certificate of authentication................................ 8
SECTION 2.05. The Company to maintain register at office or agency in New York..... 8
Registration and registration of transfer of Securities.............. 9
Exchange of Securities............................................... 9
Payment in connection with registration of transfer or exchange of
Securities........................................................... 10
Persons who may be treated as owners of Securities................... 10
SECTION 2.06. Replacing Securities mutilated, destroyed, lost or stolen............ 10
SECTION 2.07. Rights to interest accrued and unpaid, and to accrue, on Securities
delivered in exchange or substitution for other Securities........... 11
SECTION 2.08. Temporary Securities................................................. 11
ARTICLE THREE
ISSUE OF SECURITIES
SECTION 3.01. Authentication, Delivery and Dating.................................. 11
ARTICLE FOUR
REDEMPTION OF SECURITIES; SINKING FUND
SECTION 4.01. Applicability of right of redemption................................. 13
SECTION 4.02. Notice of redemption................................................. 13
Interest to cease after redemption date.............................. 13
Selection of Securities on partial redemption........................ 13
SECTION 4.03. Securities of any series to be canceled and discharged on specific
conditions........................................................... 14
SECTION 4.04. Applicability of sinking fund........................................ 14
SECTION 4.05. Mandatory sinking fund obligation.................................... 14
SECTION 4.06. Optional redemption at sinking fund redemption price................. 14
SECTION 4.07. Application of sinking fund payments................................. 14
ARTICLE FIVE
PARTICULAR COVENANTS OF THE COMPANY
SECTION 5.01. To pay principal, premium, if any, and interest...................... 15
SECTION 5.02. To maintain office or agency in New York............................. 15
SECTION 5.03. The Company, or paying agent, to hold in trust moneys for payment of
principal, premium, if any, and interest............................. 16
SECTION 5.04. Restrictions upon liens upon property of the Company and Restricted
Subsidiaries......................................................... 16
SECTION 5.05. Maintenance of corporate existence................................... 18
SECTION 5.06. Restrictions on consolidation, merger, sale, etc..................... 18
SECTION 5.07. Annual statement concerning compliance with covenants................ 18
SECTION 5.08. Compliance with covenants and conditions may be waived by holders of
Securities........................................................... 19
ARTICLE SIX
REMEDIES OF TRUSTEE AND SECURITYHOLDERS
SECTION 6.01. Events of default.................................................... 19
SECTION 6.02. Acceleration of maturity of principal on default..................... 20
Waiver of acceleration of maturity................................... 20
</TABLE>
ii
<PAGE> 5
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 6.03. The Company, failing for 30 days to pay any installment of interest
or sinking fund payment or failing to pay principal when due, will
pay to Trustee at its request whole amount due....................... 20
Upon failure to pay, Trustee may recover judgment for ratable benefit
of Securityholders................................................... 21
SECTION 6.04. Trustee appointed attorney-in-fact for Securityholders to file
claims............................................................... 21
SECTION 6.05. Application of moneys collected by Trustee........................... 21
SECTION 6.06. Securityholders may direct proceedings and waive defaults............ 22
SECTION 6.07. Limitations on rights of Securityholders to institute proceedings.... 22
SECTION 6.08. Assessment of costs and attorneys' fees in legal proceedings......... 23
SECTION 6.09. Remedies cumulative.................................................. 23
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Evidence of action by Securityholders................................ 23
SECTION 7.02. Proof of execution of instruments and of holding of Securities....... 23
SECTION 7.03. Securities owned by the Company or other obligor on the Securities to
be disregarded in certain cases...................................... 24
SECTION 7.04. Revocation by Securityholders of consents to action.................. 24
ARTICLE EIGHT
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of meetings................................................. 24
SECTION 8.02. Call of meetings by Trustee.......................................... 25
SECTION 8.03. Call of meetings by Company or Securityholders....................... 25
SECTION 8.04. Qualifications for voting............................................ 25
SECTION 8.05. Regulation of meetings............................................... 25
SECTION 8.06. Voting............................................................... 25
SECTION 8.07. No delay of rights by meeting........................................ 26
ARTICLE NINE
REPORTS BY THE COMPANY AND THE TRUSTEE
AND SECURITYHOLDERS' LISTS
SECTION 9.01. Company to Furnish Trustee Names and Addresses of Holders............ 26
SECTION 9.02. Preservation of Information; Communications to Holders............... 26
SECTION 9.03. Reports by Trustee................................................... 26
SECTION 9.04. Reports by Company................................................... 27
ARTICLE TEN
CONCERNING THE TRUSTEE
SECTION 10.01. Certain Rights of Trustee............................................ 27
SECTION 10.02. Not Responsible for Recitals or Issuance of Securities............... 28
SECTION 10.03. May Hold Securities.................................................. 28
SECTION 10.04. Money Held in Trust.................................................. 28
SECTION 10.05. Compensation and Reimbursement....................................... 28
SECTION 10.06. Corporate Trustee Required; Eligibility.............................. 29
SECTION 10.07. Resignation and Removal; Appointment of Successor.................... 29
SECTION 10.08. Acceptance of Appointment by Successor............................... 30
SECTION 10.09. Merger, Conversion, Consolidation or Succession to Business.......... 31
</TABLE>
iii
<PAGE> 6
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 10.10. Appointment of Authenticating Agent.................................. 31
SECTION 10.11. Notice of Defaults................................................... 32
ARTICLE ELEVEN
DEFEASANCE
SECTION 11.01. Discharge of Indenture upon payment of Securities.................... 32
SECTION 11.02. Discharge of Securities of any series upon deposit of moneys......... 32
SECTION 11.03. Interest on moneys deposited......................................... 33
Moneys unclaimed for three years to be returned to the Company....... 33
Moneys deposited with Trustee to pay principal, premium, if any, or
interest to be held in trust......................................... 33
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
SECTION 12.01. Liability solely corporate........................................... 33
ARTICLE THIRTEEN
SUPPLEMENTAL INDENTURES
SECTION 13.01. Without consent of Securityholders, the Company and Trustee may enter
into supplemental indentures for specified purposes.................. 34
SECTION 13.02. Modification of Indenture by supplemental indenture with consent of
Securityholders...................................................... 35
SECTION 13.03. Upon request of the Company, Trustee to join in execution of
supplemental indenture............................................... 35
SECTION 13.04. Effect of supplemental indenture..................................... 35
SECTION 13.05. Matters provided for in supplemental indenture may be noted on
Securities, or new Securities appropriately modified may be issued in
exchange for outstanding Securities.................................. 36
SECTION 13.06. Supplemental indentures to conform to Trust Indenture Act of 1939.... 36
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 14.01. Consolidation, merger, sale or lease................................. 36
SECTION 14.02. Rights under Indenture confined to parties and holders of
Securities........................................................... 36
SECTION 14.03. Evidence of compliance with conditions precedent..................... 37
As evidence of compliance, Officers' Certificate and Opinion of
Counsel to be furnished to Trustee................................... 37
Contents of certificates and opinions................................ 37
Trustee may examine books and records of the Company................. 37
SECTION 14.04. Cancellation of Securities........................................... 37
SECTION 14.05. Provisions required by Trust Indenture Act of 1939 to control........ 37
SECTION 14.06. Action of authorized committee deemed to be action of Board of
Directors............................................................ 37
SECTION 14.07. Notices.............................................................. 38
SECTION 14.08. Act of Holders....................................................... 38
SECTION 14.09. Payments due on Non-Business days.................................... 39
SECTION 14.10. Execution in counterparts............................................ 39
SECTION 14.11. Indenture deemed a New York contract................................. 39
TESTIMONIUM........................................................................... 39
SIGNATURES AND SEALS.................................................................. 39
ACKNOWLEDGEMENTS...................................................................... 39
</TABLE>
iv
<PAGE> 7
INDENTURE, dated as of Section 1, 1992, between GREYHOUND FINANCIAL
CORPORATION, a corporation organized and existing under the laws of the State of
Delaware (hereinafter called the "Company"), party of the first part, and THE
CHASE MANHATTAN BANK, N.A., a national banking association, as trustee
(hereinafter called the "Trustee"), party of the second part.
RECITALS
The Company is authorized and empowered to borrow money for its corporate
purposes and to issue its bonds, debentures, notes and other obligations for
money so borrowed.
The Company has duly authorized the issue, in one or more series as in this
Indenture provided, from time to time of its debt securities (hereinafter called
the "Securities") and, to provide the general terms and conditions upon which
the Securities are to be authenticated, issued and delivered, the Company has
duly authorized the execution and delivery of this Indenture.
The Trustee has power to enter into this Indenture and to accept and
execute the trusts herein created.
The Company represents that all acts and things necessary to make the
Securities, when executed by the Company and authenticated and delivered by the
Trustee as in this Indenture provided and issued, the valid, binding and legal
obligations of the Company, will, at the time of such execution, authentication
and delivery, have been done and performed; that all acts and things necessary
to constitute these presents a valid indenture and agreement according to its
terms have been done and performed; that the execution of this Indenture has in
all respects been duly authorized and the issue hereunder of the Securities
will, at the time of the issue thereof, have in all respects been duly
authorized; and that the Company, in the exercise of each and every legal right
and power in it vested, executes this Indenture and proposes to make, execute,
issue and deliver the Securities.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, in consideration of the premises and of the acceptance and purchase
of the Securities by the holders thereof, the Company covenants and agrees with
the Trustee, for the equal benefit of all the holders from time to time of the
Securities, without preference, priority or distinction of any thereof over any
other thereof by reason of priority in time of issuance or negotiation, or
otherwise, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Unless otherwise defined in this Indenture or the context
otherwise requires, all terms used herein shall have the meanings assigned to
them in the Trust Indenture Act of 1939.
SECTION 1.02. Unless the context otherwise requires, the terms defined in
this Section 1.02 shall for all purposes of this Indenture have the meanings
hereinafter set forth, the following definitions to be equally applicable to
both the singular and the plural forms of any of the terms herein defined:
Act:
The term "Act", when used with respect to any holders, has the meaning
specified in Section 14.08.
Authenticating Agent:
The term "Authenticating Agent" means the Trustee and/or the
authenticating agent, if any, appointed by the Trustee and acting pursuant
to Section 10.10.
<PAGE> 8
Board Resolution:
The term "Board Resolution" means a copy of a resolution or
resolutions certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors or any
committee of the Board of Directors (or committee of officers or other
representatives of the Company, to the extent that any such committee or
committees have been authorized by the Board of Directors to establish or
approve the matters contemplated by Section 2.02 hereof) and to be in full
force and effect on the date of such certification, and delivered to the
Trustee.
Business day:
The term "Business day" shall mean a day which in The City of New York
is not a day on which banking institutions are authorized or obligated by
law or executive order to close.
Commission:
The term "Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934 or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at such
time.
Company:
The term "Company" shall mean Greyhound Financial Corporation and,
subject to the provisions of Section 14.01, shall also include its
successors and assigns.
Consolidated Net Tangible Assets:
The term "Consolidated Net Tangible Assets" means the total of all
assets reflected on a consolidated balance sheet of the Company and its
consolidated Subsidiaries, prepared in accordance with generally accepted
accounting principles, at their net book values (after deducting related
depreciation, depletion, amortization and all other valuation reserves
which, in accordance with such principles, should be set aside in
connection with the business conducted), but excluding goodwill,
unamortized debt discount and all other like intangible assets, all as
determined in accordance with such principles, less the aggregate of the
current liabilities of the Company and its consolidated Subsidiaries
reflected on such balance sheet, all as determined in accordance with such
principles. For purposes of this definition, "current liabilities" include
all indebtedness for money borrowed, incurred, issued, assumed or
guaranteed by the Company and its consolidated Subsidiaries, and other
payables and accruals, in each case payable on demand or due within one
year of the date of determination of Consolidated Net Tangible Assets, but
shall exclude any portion of long-term debt maturing within one year of the
date of such determination, all as reflected on such consolidated balance
sheet of the Company and its consolidated Subsidiaries, prepared in
accordance with generally accepted accounting principles.
Depositary:
With respect to the Securities of any series issuable or issued in
whole or in part in global form, the Person designated as Depositary by the
Company pursuant to Section 2.02 until a successor Depositary shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one such
Person, "Depositary" as used with respect to the Securities of any such
series shall mean the "Depositary" with respect to the Securities of that
series.
Event of default:
The term "event of default" shall have the meaning specified in
Section 6.01.
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Indenture:
The term "Indenture" or "this Indenture" shall mean this instrument
and all indentures supplemental hereto.
Interest Payment Date:
The term "Interest Payment Date" when used with respect to any
Security shall mean the Stated Maturity of an instalment of interest on
such Security.
Lien:
The term "Lien" means any lien, charge, claim, security interest,
pledge, hypothecation, right of another under any conditional sale or other
title retention agreement, or any other encumbrance affecting title to
property. Without limiting the generality of the foregoing, the sale of
property used or useful in the business of the seller with the intention of
retaining the use thereof under a lease, or any other comparable
arrangement commonly referred to as a "sale and leaseback", shall be deemed
to create a Lien on such property.
Mandatory Sinking Fund Payment:
The term "Mandatory Sinking Fund Payment" shall have the meaning
specified in Section 4.04.
Maturity:
The term "Maturity", with respect to any Security, shall mean the date
on which the principal of such Security shall become due and payable as
therein and herein provided, whether by declaration, call for redemption or
otherwise.
Officers' Certificate:
The term "Officers' Certificate", when used with respect to the
Company, shall mean a certificate signed by the Chairman of the Board of
Directors, the President or any Vice President and by the Treasurer, any
Assistant Treasurer, the Controller, any Assistant Controller, the
Secretary or any Assistant Secretary of the Company.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing signed
by legal counsel, who may be counsel for the Company.
Optional Sinking Fund Payment:
The term "Optional Sinking Fund Payment" shall have the meaning
specified in Section 4.04.
Outstanding:
The term "outstanding", when used as of any particular time with
reference to Securities, shall mean, as of the date of determination and
subject to Section 7.03, all Securities theretofore authenticated and
delivered by the Trustee under this Indenture, except
(a) Securities or portions thereof for which (i) funds, or as
provided in Section 11.02 hereof, direct obligations of the United
States of America, sufficient to pay the principal thereof, premium, if
any, thereon and all unpaid interest thereon to Maturity or to the date
fixed for the redemption thereof shall have been deposited in trust for
such purpose as provided herein with the Trustee or with any paying
agent (other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act as its own
paying agent), and (ii) in case of redemption,
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<PAGE> 10
notice of redemption thereof shall have been duly given or provision
satisfactory to the Trustee for the giving of such notice shall have
been made;
(b) Securities which shall have been cancelled or surrendered to
the Trustee for cancellation; and
(c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to
Section 2.05 or 2.06;
provided, however, that in determining whether the holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities
owned by the Company or any other obligor upon the Securities or any
affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which
the Trustee knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the pledgee is not
the Company or any other obligor upon the Securities or any affiliate of
the Company or of such other obligor.
Person:
The term "person" shall mean an individual, a corporation, a
partnership, a joint venture, an association, a joint stock company, a
trust, an unincorporated organization or a government or an agency or
political subdivision thereof.
Principal Office of the Trustee:
The term "Principal Office of the Trustee", or other similar term,
shall mean the principal corporate trust office of the Trustee at which its
principal trust business is administered. As of the date hereof, the
Principal Office of the Trustee is located at 4 Chase MetroTech Center, 3rd
Floor, Brooklyn, New York 11245 (telephone: (718) 242-7285 and telecopier:
(718) 242-5885).
Record Date:
The term "Record Date" shall mean, with respect to any interest
payable on any Security on any Interest Payment Date, the close of business
on the date specified in such Security or, in the case of defaulted
interest, the close of business on any subsequent record date established
as provided in Section 2.01 (in each case whether or not such day is a
business day).
Redemption Date:
The term "Redemption Date" when used with respect to any Security to
be redeemed, in whole or in part, shall mean the date fixed for such
redemption by or pursuant to this Indenture and the terms of such Security.
Redemption Price:
The term "Redemption Price" when used with respect to any Security to
be redeemed shall mean the price (exclusive of accrued interest) at which
it is to be redeemed pursuant to this Indenture and the terms of such
Security.
Responsible Officers:
"Responsible Officers" of the Trustee hereunder shall mean and include
the chairman and any vice chairman of the board of directors, the
president, the chairman and any vice chairman of the executive committee of
the board of directors, or any officer in the corporate trust department of
the Trustee
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customarily performing functions similar to those performed by the persons
who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of, and
familiarity with, a particular subject.
Restricted Subsidiary:
The term "Restricted Subsidiary" means any Subsidiary which is
designated as such by Board Resolution and at least a majority of the
shares of Voting Stock of which shall at the time be owned, directly, by
the Company or by one or more Restricted Subsidiaries or by the Company and
one or more Restricted Subsidiaries.
Security:
The term "Security" shall mean one of the Securities duly
authenticated by the Trustee and delivered pursuant to the provisions of
this Indenture.
Security Co-Registrar:
The term "Security Co-Registrar" has the meaning specified in Section
2.05.
Security Register; Security Registrar:
The terms "Security Register" and "Security Registrar" have the
respective meanings specified in Section 2.05.
Securityholder; holder of Securities; holder; registered holder:
The term "Securityholder" or "holder of Securities" or "holder" or
"registered holder", with respect to a Security, shall mean the person in
whose name such Security or Securities shall be registered in the register
kept for that purpose hereunder.
Stated Maturity:
The term "Stated Maturity" when used with respect to any Security or
any instalment of interest thereon shall mean the date specified in such
Security as the fixed date on which the principal (or any portion thereof)
of or premium, if any, on such Security or such instalment of interest is
due and payable.
Subsidiary:
The term "Subsidiary" shall mean any corporation at least a majority
of the Voting Stock of which shall at the time be owned, directly or
indirectly, by the Company, or one or more Subsidiaries, or by the Company
and one or more Subsidiaries.
Trustee:
The term "Trustee" shall mean the trustee hereunder for the time
being, whether original or successor, and if at any time there is more than
one such trustee, "Trustee" as used with respect to the Securities of any
series shall mean the trustee with respect to Securities of that series.
Trust Indenture Act of 1939 or Trust Indenture Act:
The term "Trust Indenture Act of 1939" or "Trust Indenture Act" shall
mean such Act as amended from time to time except as provided in Section
13.06 or otherwise required by law.
Unrestricted Subsidiary:
The term "Unrestricted Subsidiary" shall mean any Subsidiary other
than a Restricted Subsidiary.
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Voting Stock:
The term "Voting Stock" means stock of any class or classes (however
designated) having ordinary voting power for the election of a majority of
the members of the board of directors (or any governing body) of such
corporation, other than stock having such power only by reason of the
happening of a contingency.
Certain other terms, relating principally to provisions included in this
Indenture in compliance with the Trust Indenture Act of 1939, are defined in
Article Ten.
ARTICLE TWO
FORM, EXECUTION, DELIVERY, TRANSFER AND
EXCHANGE OF SECURITIES
SECTION 2.01. The Securities of each series shall be issuable in
registered form and shall be in substantially such form as shall be established
by or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification or designation and
such legends or endorsements printed, lithographed or engraved thereon as the
officers of the Company executing the same may approve (execution thereof to be
conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which the Securities may be listed, or to conform to
usage. The Securities shall be issued, except as otherwise provided with respect
to any series of Securities pursuant to Section 2.02, in the denomination of
$1,000 and any larger denomination which is an integral multiple of $1,000
approved by the Company, such approval to be evidenced by the execution thereof.
If Securities of a series are issuable in whole or in part in global form,
any such Security may provide that it shall represent the aggregate amount of
Outstanding Securities from time to time endorsed thereon and may also provide
that the aggregate amount of Outstanding Securities represented thereby may from
time to time be reduced to reflect exchanges or increased to reflect the
issuance of additional Securities. Any endorsement of a Security in global form
to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made in such manner and by such Person
or Persons, as shall be specified therein or in the Company order of
authentication delivered to the Trustee pursuant to Section 2.04.
The person in whose name any Security is registered at the close of
business on any Record Date with respect to any Interest Payment Date shall be
entitled to receive the interest payable on such Interest Payment Date
notwithstanding the cancellation of such Security upon any transfer or exchange
thereof subsequent to such Record Date and prior to such Interest Payment Date;
provided, however, that, if and to the extent the Company shall default in the
payment of the interest due on such Interest Payment Date, the defaulted
interest shall be paid to the persons in whose names the outstanding Securities
are registered on a subsequent record date, such record date to be not less than
5 days prior to the date of payment of such defaulted interest, established by
notice given by mail by or on behalf of the Company to the holders of Securities
not less than 15 days preceding such subsequent record date.
The principal of and interest and premium, if any, on the Securities shall
be payable at each office or agency of the Company designated pursuant to
Section 5.02 for such purpose; provided, however, that interest may at the
option of the Company be paid by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register
(including the records of any Security Co-Registrar). Such payments will be made
in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts.
SECTION 2.02. The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
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The Securities may be issued in one or more series. There shall be
established by or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series:
(a) the title of the Securities of the series (which shall distinguish
the Securities of the series from the Securities of all other series,
except to the extent that additional Securities of an existing series are
being issued);
(b) any limit upon the aggregate principal amount of the Securities of
the series which may be outstanding under this Indenture (except as
otherwise provided in Section 2.06, 2.08, 4.02 or 13.05);
(c) the date or dates on which the principal of the Securities of the
series is payable;
(d) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue, or the
method by which such date or dates shall be determined, the interest
payment dates on which such interest shall be payable and the record dates
for the determination of holders to whom interest is payable;
(e) the place or places where the principal of, premium, if any, and
interest on Securities of the series shall be payable;
(f) the price or prices at which, the period or periods within which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company, if the Company
is to have that option;
(g) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a holder thereof and the price or prices at
which the period or periods within which and the terms and conditions upon
which Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
(h) if other than denominations of $1,000 or any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(i) if other than the principal amount thereof, the portion of the
principal amount of the Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 6.02;
(j) the issuance of the Securities of such series in whole or in part
in global form and, if so, the identity of the Depositary for such
Securities in global form, and the terms and conditions, if any, upon which
interests in such Securities in global form may be exchanged, in whole or
in part, for the individual Securities represented thereby;
(k) any deletions from, modifications of or additions to the events of
default or covenants of the Company with respect to any of such Securities,
whether or not such events of default or covenants are consistent with the
events of default or covenants set forth herein; and
(l) any other terms of the Securities of the series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided by or pursuant to such
Board Resolution, and set forth in such Officers' Certificate, or in any such
indenture supplemental hereto. If any of the terms of a series of Securities are
established by action taken pursuant to a Board Resolution, a copy of such Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series. All Securities of
any one series need not be issued at the same time and, unless otherwise so
provided by the Company, a series may be reopened for issuances of additional
Securities of such series or to establish additional terms of such series of
Securities.
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SECTION 2.03. The Securities shall be signed in the name and on behalf of
the Company by the manual or facsimile signature of its Chairman of the Board of
Directors, its President or one of its Vice Presidents, under its corporate seal
(which may be printed, engraved or otherwise reproduced thereon, by facsimile or
otherwise), which shall be attested by the manual or facsimile signature of its
Secretary, or one of its Assistant Secretaries. The Securities shall then be
delivered to the Trustee or the Authenticating Agent for authentication by it,
and thereupon, as provided herein, the Trustee or the Authenticating Agent shall
authenticate and deliver such Securities. In case any officer of the Company who
shall have signed any of the Securities shall cease to be such officer of the
Company before the Securities so signed shall have been actually authenticated
and delivered by the Trustee or the Authenticating Agent, such Securities may
nevertheless be issued, authenticated and delivered as though the person who
signed such Securities had not ceased to be such officer of the Company; and
also any of the Securities may be signed on behalf of the Company by any person
who at the time of the execution of such Securities shall be the proper officer
of the Company, even though at the date of the execution of this Indenture such
person may not have been such officer of the Company.
SECTION 2.04. Only such of the Securities as shall bear thereon a
certificate substantially in the form of the Trustee's certificate of
authentication hereinafter recited, executed by the Trustee or the
Authenticating Agent, shall be valid or become obligatory for any purpose or
entitle the holder thereof to any right or benefit under this Indenture, and the
certificate of authentication by the Trustee or the Authenticating Agent upon
any such Security executed on behalf of the Company as aforesaid shall be
conclusive evidence, and the only evidence, that the Security so authenticated
has been duly authenticated and delivered hereunder and that the holder thereof
is entitled to the benefits of this Indenture.
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities issued under the Indenture described herein.
The Chase Manhattan Bank, N.A.
as Trustee
By
Authorized Signatory
or (if an Authenticating Agent is
appointed pursuant to Section 10.10)
The Chase Manhattan Bank, N.A.
as Trustee
By (Name of Agent)
as Authenticating Agent
By
Authorized Signatory
SECTION 2.05. The Company shall cause to be kept a register (herein
sometimes referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. Unless and until
otherwise determined by the Company, by Board Resolution, the Security Register
initially shall be kept at the Principal Office of the Trustee. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided. The Company may appoint one or
more "Security Co-Registrars"
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<PAGE> 15
for such purpose. The Security Registrar and any Security Co-Registrars are
herein sometimes referred to, and are appointed as, the "Security Registrar".
Upon surrender for registration of transfer of any Security of any series
at any office or agency of the Company designated pursuant to Section 5.02 for
such purpose or at the office of any Security Co-Registrar, the Company shall
execute and the Trustee or the Authenticating Agent shall authenticate and
deliver a Security or Securities of such series for a like aggregate principal
amount, in such authorized denomination or denominations and registered in such
name or names as may be requested. The transfer of any security shall not be
valid as against the Company or the Trustee unless registered at such offices or
agency by the registered holder, or by his attorney duly authorized in writing.
Securities of any series in their several authorized denominations are
exchangeable for a Security or Securities of such series in authorized
denominations and of a like aggregate principal amount. Securities to be
exchanged as aforesaid shall be surrendered for that purpose by the registered
holder thereof at such offices or agency, and the Company shall execute and the
Trustee or the Authenticating Agent shall authenticate and deliver in exchange
therefor the Security or Securities in such authorized denomination or
denominations as the Securityholder making the exchange shall have requested and
shall be entitled to receive. The Company shall not be required to make any
exchange or effect registration of transfer of (i) any Security which shall have
been designated for redemption in whole or in part except, in the case of any
Security to be redeemed in part, the portion thereof not so to be redeemed, or
(ii) any Security for a period of 15 days next preceding any selection of
Securities for redemption.
Notwithstanding any other provision of this Section, unless and until it is
exchanged in whole or in part for the individual Securities represented thereby,
in definitive form, a Security in global form representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
All Securities presented or surrendered for registration of transfer,
exchange or payment shall (if so required by the Company or the Trustee or any
Security Registrar or Security Co-Registrar or any Authenticating Agent) be duly
endorsed by, or accompanied by a written instrument or instruments of transfer
(in form satisfactory to the Company and the Security Registrar or any Security
Co-Registrar) duly executed by, the registered holder or by his attorney duly
authorized in writing.
If at any time the Depositary for the Securities of a series represented by
one or more Securities in global form notifies the Company that it is unwilling
or unable to continue as Depositary for the Securities of such series or if at
any time the Depositary for the Securities of such series shall no longer be
eligible under Section 2.01, the Company shall appoint a successor Depositary
with respect to the Securities of such series. If a successor Depositary for the
Securities of such series is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware of such ineligibility, the
Company's election pursuant to Section 2.02 that such Securities be represented
by one or more Securities in global form shall no longer be effective with
respect to the Securities of such series and the Company will execute, and the
Trustee, upon receipt of a Company order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver, Securities
of such series in definitive form, in authorized denominations, in an aggregate
principal amount and like terms and tenor equal to the principal amount of the
Security or Securities in global form representing such series in exchange for
such Security or Securities in global form.
The Company may at any time and in its sole discretion determine that
individual Securities of any series issued in global form shall no longer be
represented by such Security or Securities in global form. In such event the
Company will execute, and the Trustee, upon receipt of a Company order for the
authentication and delivery of definitive Securities of such series and of the
same terms and tenor, will authenticate and deliver Securities of such series in
definitive form, in authorized denominations, and in aggregate principal amount
equal to the principal amount of the Security or Securities in global form
representing such series in exchange for such Security or Securities in global
form.
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If specified by the Company pursuant to Section 2.02 with respect to a
series of Securities issued in global form, the Depositary for such series of
Securities may surrender a Security in global form for such series of Securities
in exchange in whole or in part for Securities of such series in definitive form
and of like terms and tenor on such terms as are acceptable to the Company and
such Depositary. Thereupon, the Company shall execute, and the Trustee upon
receipt of a Company order for the authentication and delivery of definitive
Securities of such series, shall authenticate and deliver, without service
charge to the Holders:
(a) to each Person specified by such Depositary a new definitive
Security or Securities of the same series and of the same tenor, in
authorized denominations, in aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the Security in global
form; and
(b) to such Depositary a new Security in global form in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Security in global form and the aggregate principal amount of
the definitive Securities delivered to holders pursuant to clause (a)
above.
Upon the exchange of a Security in global form for Securities in definitive
form, such Security in global form shall be cancelled by the Trustee or an agent
of the Company or the Trustee. Securities issued in definitive form in exchange
for a Security in global form pursuant to this Section 2.05 shall be registered
in such names and in such authorized denominations as the Depositary for such
Security in global form, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the Company
or the Trustee in writing. The Trustee or such agent shall deliver such
Securities to or as directed by the Persons in whose names such Securities are
so registered or to the Depositary.
Whenever any securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the holder making the exchange is entitled to receive.
No service charge shall be made for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
applicable tax or other governmental charge payable in connection therewith.
The Company and the Trustee, and the agents of either, may deem and treat
the person in whose name any Security is registered as the absolute owner of
such Security (whether or not such Security shall be overdue and notwithstanding
any notation of ownership or other writing thereon) for all purposes whatsoever
(subject to the provisions set forth herein relating to Record Dates and record
dates for the payment of any defaulted interest), and the Company and the
Trustee, and the agents of either, shall not be affected by any notice to the
contrary.
None of the Company, the Trustee, any Authenticating Agent, any Paying
Agent or the Security Registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests of a Security in global form or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interest and each
of them may act or refrain from acting without liability on any information
relating to such records provided by the Depositary.
SECTION 2.06. In case any temporary or definitive Security of a particular
series shall become mutilated or be destroyed, lost or stolen, then upon the
conditions hereinafter set forth the Company in its discretion may execute, and
thereupon the Trustee or the Authenticating Agent shall authenticate and
deliver, a new Security of the same series of like tenor and principal amount
and bearing a different number, in exchange and substitution for and upon
cancellation of the mutilated Security or in lieu of and substitution for the
Security so destroyed, lost or stolen; provided, however, that if any such
mutilated, destroyed, lost or stolen Security shall have become payable upon the
maturity thereof, the Company may, instead of issuing a substitute Security, pay
such Security without requiring the surrender thereof. The applicant for any
substitute Security or for payment of any such mutilated, destroyed, lost or
stolen Security shall furnish to the Company and to the Trustee evidence
satisfactory to them, in their discretion, of the ownership of and the
destruction, loss or theft of such Security and shall furnish to the Company and
to the Trustee indemnity satisfactory to them, in their discretion, and, if
required, shall reimburse the Company and the Trustee for all expenses
(including counsel fees and any tax or other governmental charge that may be
imposed in relation thereto) in connection with the preparation, issue and
authentication of such substitute Security or the payment of such
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<PAGE> 17
mutilated, destroyed, lost or stolen Security, and shall comply with such other
reasonable regulations as the Company and the Trustee, or either of them, may
prescribe. Any such new Security delivered pursuant to this Section 2.06 shall
constitute an additional contractual obligation on the part of the Company,
whether or not the allegedly destroyed, lost or stolen Security shall be at any
time enforceable by anyone, and shall be equally and proportionately entitled to
the benefit of this Indenture with all other Securities of the same series
issued hereunder. All Securities shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities and shall preclude any and all other rights or
remedies.
SECTION 2.07. Subject to the provisions set forth herein relating to
Record Dates and record dates for the payment of any defaulted interest, each
Security delivered pursuant to any provision of this Indenture in exchange or
substitution for, or upon registration of transfer of, any other Security shall
carry all the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
SECTION 2.08. Pending the preparation of definitive Securities of any
series the Company may execute and the Trustee or the Authenticating Agent shall
authenticate and deliver temporary Securities of such series (printed or
lithographed). Temporary Securities shall be issuable in any authorized
denomination, and substantially in the form of the definitive Securities but
with such omissions, insertions and variations as may be appropriate for
temporary Securities, all as may be determined by the Company. In the case of
Securities of any series, such temporary Securities may be in global form,
representing all of the Outstanding Securities of such series and tenor. Every
such temporary Security of a particular series shall be authenticated by the
Trustee or the Authenticating Agent upon the same conditions and in
substantially the same manner, and with the same effect, as the definitive
Securities of such series. Without unreasonable delay, and except in the case of
temporary Securities in global form which shall be exchanged in accordance with
the provisions thereof, the Company will execute and deliver to the Trustee
definitive Securities of such series and thereupon any or all temporary
Securities of such series may be surrendered in exchange for definitive
Securities of the same series, at the principal corporate trust office of the
Trustee or any office or agency of the Company designated pursuant to Section
5.02 for such purpose or at the office of any Security Co-Registrar, and the
Trustee or the Authenticating Agent shall authenticate and deliver in exchange
for such temporary Securities an equal aggregate principal amount of definitive
Securities of the same series. Such exchange shall be made by the Company at its
own expense and without any charge therefor except that the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto. Until so exchanged, the temporary Securities
of a particular series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series authenticated
and delivered hereunder.
ARTICLE THREE
ISSUE OF SECURITIES
SECTION 3.01. At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee or the Authenticating Agent for
authentication. The Trustee or the Authenticating Agent shall thereupon
authenticate and deliver such Securities to or upon the written order of the
Company, signed by its Chairman of the Board of Directors, its President or a
Vice President, without any further action by the Company. In authenticating
such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Section 315 of the Trust Indenture Act) shall be fully
protected in relying upon:
(a) a Board Resolution relating thereto and, if applicable, an
appropriate record of any action taken pursuant to such resolution,
certified by the Secretary or an Assistant Secretary of the Company;
(b) an executed supplemental indenture, if any;
(c) an Officers' Certificate; and
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(d) an Opinion of Counsel prepared in accordance with Section 14.03,
which shall state
(1) that the form and terms of such Securities have been
established by or pursuant to one or more Board Resolutions, by a
supplemental indenture as permitted by Section 13.01(g), or by both such
resolution or resolutions and such supplemental indenture, in conformity
with the provisions of this Indenture;
(2) that the supplemental indenture, if any, when executed and
delivered by the Company and the Trustee, will constitute a valid and
legally binding obligation of the Company;
(3) that such Securities, when authenticated and delivered by the
Trustee or the Authenticating Agent and issued by the Company in the
manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, and will be
entitled to the benefits of this Indenture;
(4) that the Company has the corporate power to issue such
Securities, and has duly taken all necessary corporate action with
respect to such issuance;
(5) that the issuance of such Securities will not contravene the
charter or by-laws of the Company or result in any violation of any of
the terms or provisions of any law or regulation or of any indenture,
mortgage or other agreement by which the Company is bound and under
which long-term debt of the Company as reflected in its latest financial
statements on file with the Securities and Exchange Commission is
outstanding; and
(6) that all requirements of this Indenture applicable to the
Company in respect of the execution and delivery by the Company of such
Securities and of such supplemental indenture, if any, have been
complied with and that, assuming (a) all requisite corporate
authorization on the part of the Trustee, (b) continued compliance by
the Trustee with the terms of the Indenture specifically applicable to
the Trustee, and (c) due authentication and delivery of such Securities
by the Trustee or the Authenticating Agent, the execution and delivery
of such supplemental indenture, if any, will not violate the terms of
this Indenture, and that, other than compliance with federal and state
securities laws, no authorization, approval or consent by any regulatory
or statutory or other public authority is required in connection with
the execution and delivery of such supplemental indenture or for the
creation, issuance, authentication and delivery of the Securities
pursuant to this Indenture.
If the Company shall establish pursuant to Section 2.02 that Securities of
a series may be issued in whole or in part in global form, then the Company
shall execute and the Trustee shall, in accordance with this Section and the
Company order of authentication with respect to such series, authenticate and
deliver one or more Securities in global form that (i) shall represent and shall
be denominated in an aggregate amount equal to the aggregate principal amount of
the Outstanding Securities of such series and tenor to be represented by one or
more Securities in global form, (ii) shall be registered, in the name of the
Depositary for such Security or Securities in global form or the nominee of such
Depositary, (iii) shall be delivered to such Depositary or pursuant to such
Depositary's instruction, and (iv) shall bear a legend substantially to the
following effect: "Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC")
to Issuer or its agent for transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein." Each Depositary designated pursuant
to Section 2.02 for a Security in global form must, at the time of its
designation and at all times while it serves as Depositary, be a clearing agency
registered under the Securities Exchange Act of 1934 and any other applicable
statute or regulation.
The Trustee shall have the right to decline to authenticate and deliver any
Securities under this Section if the issue of such Securities pursuant to this
Indenture will affect the Trustee's own rights, duties or
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immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
ARTICLE FOUR
REDEMPTION OF SECURITIES; SINKING FUND
SECTION 4.01. Redemption of Securities (other than pursuant to a sinking
fund or analogous provision) permitted by the terms of any series of Securities
shall be made in accordance with such terms and Sections 4.02 and 4.03;
provided, however, that if any such terms of a series of Securities shall
conflict with any provision of this Article, the terms of such series shall
govern.
SECTION 4.02. The election of the Company to redeem any Securities of any
series shall be evidenced by or pursuant to a Board Resolution. If the Company
shall elect to redeem the Securities of any series in whole or in part as
aforesaid, it shall fix a date for redemption and give notice of its election so
to redeem by mailing or causing to be mailed written notice, postage prepaid, at
least 30 days prior to the redemption date, to all holders of Securities to be
redeemed as a whole or in part, addressed to them at their respective addresses
as the same shall then appear on the Security Register of the Company. Any
notice which shall be mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the holder shall receive such
notice. Failure to mail such notice, or any defect in the notice mailed, to the
holder of any Security designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any other Security.
Each notice of redemption shall state such election on the part of the
Company, the Redemption Date and place of payment of the Securities to be
redeemed and the Redemption Price and that the Securities designated in such
notice for redemption are required to be presented on or after such Redemption
Date and at such place for payment and that interest to the Redemption Date on
the Securities and portions of Securities called for redemption will be paid as
specified in said notice and shall cease to accrue thereon on such date. If less
than all the outstanding Securities of a series are to be redeemed, the notice
shall also designate the Securities or portions of Securities that are to be
redeemed. If any Security is to be redeemed in part only, the notice shall also
state that upon presentation of such Security on or after the redemption date at
said place, such Security will be canceled and a new Security or Securities of
the same series, in an aggregate principal amount equal to the unredeemed
portion of such Security will be issued and delivered without charge to the
holder.
Notice having been so given, the Securities and portions of Securities to
be redeemed shall on the Redemption Date specified in such notice become due and
payable at the applicable Redemption Price, together with interest accrued
thereon to the Redemption Date, and from and after the Redemption Date so
specified (unless the Company shall default in the payment of the Redemption
Price of such Securities or any such accrued interest) interest on such
Securities and portions of Securities shall cease to accrue, and upon
presentation of such Securities at said place of payment and redemption in
accordance with said notice, such Securities and portions of Securities shall be
paid by the Company at the applicable Redemption Price, together with interest
accrued to the Redemption Date (except that, if the Redemption Date shall be an
Interest Payment Date, the interest payable on such date shall be paid to the
registered holders of such Securities at the close of business on the applicable
Record Date, subject to the provisions of Section 2.01).
If the Company shall at any time elect to redeem less than all the
Securities of a series then outstanding, it shall at least 45 days prior to the
Redemption Date (unless a shorter notice shall be satisfactory to the Trustee)
notify the Trustee of the principal amount of Securities to be redeemed, and
thereupon the Trustee shall select, in such manner as the Trustee shall deem
appropriate and fair, the Securities (or portions thereof) of such series to be
redeemed. No Security of a denomination of $1,000 shall be redeemed in part and
Securities may be redeemed in part only in integral multiples of $1,000. The
Trustee shall promptly notify the Company in writing of the Securities and
portions of Securities so selected.
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SECTION 4.03. If Securities of any Series at the time outstanding are to
be redeemed under circumstances to which Section 11.02 is applicable, the
Company shall deliver to the Trustee (1) proof satisfactory to the Trustee that
notice of redemption thereof on a specified redemption date has been given as
hereinbefore provided, or (2) proof satisfactory to the Trustee that
arrangements have been made insuring to the satisfaction of the Trustee that
such notice will be so given, or (3) a written instrument in form and substance
satisfactory to the Trustee executed by the Company under its corporate seal,
and expressed to be irrevocable, authorizing the Trustee to give such notice for
and on behalf of the Company.
SECTION 4.04. Redemption of Securities permitted or required pursuant to a
sinking fund for the retirement of Securities of a series by the terms of such
series of Securities shall be made in accordance with such terms of such series
of Securities and this Article; provided, however, that if any such terms of a
series of Securities shall conflict with any provision of this Article, the
terms of such series shall govern.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "Mandatory Sinking Fund
Payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "Optional Sinking
Fund Payment". If provided for by the terms of Securities of any series, the
cash amount of any Mandatory Sinking Fund Payment may be subject to reduction as
provided in Section 4.05.
SECTION 4.05. The Company may, at its option, satisfy any Mandatory
Sinking Fund Payment obligation, in whole or in part, with respect to a
particular series of Securities by (1) delivering to the Trustee outstanding
Securities of such series in transferable form theretofore purchased or
otherwise acquired by the Company or redeemed at the election of the Company
pursuant to Section 4.01 or (2) receiving credit for Securities of such series
(not previously so credited) acquired by the Company and theretofore delivered
to the Trustee. The Trustee shall credit such Mandatory Sinking Fund Payment
obligation with an amount equal to the redemption price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such Mandatory Sinking Fund Payment shall be reduced accordingly. If the
Company shall elect so to satisfy any Mandatory Sinking Fund Payment obligation,
it shall deliver to the Trustee not less than 45 days prior to the relevant
sinking fund payment date a written notice signed on behalf of the Company by
its Chairman of the Board of Directors, its President, one of its Vice
Presidents, its Treasurer or one of its Assistant Treasurers, which shall
designate the Securities (and portions thereof, if any) to be so delivered or
credited and which shall be accompanied by such Securities (to the extent not
theretofore delivered) in transferable form. In case of the failure of the
Company, at or before the time so required, to give such notice and deliver such
Securities, the Mandatory Sinking Fund Payment obligation shall be paid entirely
in funds.
SECTION 4.06. In addition to the sinking fund requirements of Section
4.05, to the extent, if any, provided for by the terms of a particular series of
Securities, the Company may, at its option, make an Optional Sinking Fund
Payment with respect to such Securities. Unless otherwise provided by such
terms, (a) to the extent that the right of the Company to make such Optional
Sinking Fund Payment shall not be exercised in any year, it shall not be
cumulative or carried forward to any subsequent year, and (b) such optional
payment shall operate to reduce the amount of any Mandatory Sinking Fund Payment
obligation as to Securities of the same series. If the Company intends to
exercise its right to make such optional payment in any year it shall deliver to
the Trustee not less than 45 days prior to the relevant sinking fund payment
date a certificate signed by its Chairman of the Board of Directors, its
President, one of its Vice Presidents, its Treasurer or one of its Assistant
Treasurers stating that the Company will exercise such optional right, and
specifying the amount which the Company will pay on or before the next
succeeding sinking fund payment date. Such certificate shall also state that no
event of default has occurred and is continuing.
SECTION 4.07. If the sinking fund payment or payments made in funds
pursuant to either Section 4.05 or 4.06 with respect to a particular series of
Securities plus any unused balance of any preceding sinking fund payments made
in funds with respect to such series shall exceed $50,000 (or a lesser sum if
the Company shall so request), it shall be applied by the Trustee on the sinking
fund payment date next following the date of such payment, unless the date of
such payment shall be a sinking fund payment date, in which case such payment
shall be applied on such sinking fund payment date, to the redemption of
Securities of such series at the redemption price specified pursuant to Section
4.04. The Trustee shall select in the manner provided in
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Section 4.02, for redemption on such sinking fund payment date, a sufficient
principal amount of Securities of such sinking fund payment date, a sufficient
principal amount of Securities of such series to absorb said funds, as nearly as
may be, and shall, at the expense and in the name of the Company, thereupon
cause notice of redemption of the Securities to be given in substantially the
manner provided in Section 4.02 for the redemption of Securities in part at the
option of the Company, except that the notice of redemption shall also state
that the Securities are being redeemed for the sinking fund. Any sinking fund
moneys not so applied by the Trustee to the redemption of Securities of such
series shall be added to the next sinking fund payment received in funds by the
Trustee and, together with such payment, shall be applied in accordance with the
provisions of this Section 4.07. Any and all sinking fund moneys held by the
Trustee on the last sinking fund payment date with respect to Securities of such
series, and not held for the payment or redemption of particular Securities of
such series, shall be applied by the Trustee to the payment of the principal of
the Securities of such series at maturity.
On or prior to each sinking fund payment date, the Company shall pay to the
Trustee a sum equal to all interest accrued to the date fixed for redemption on
Securities to be redeemed on such sinking fund payment date pursuant to this
Section 4.07.
The Trustee shall not redeem any Securities of a series with sinking fund
moneys or mail any notice of redemption of Securities of such series by
operation of the sinking fund during the continuance of a default in payment of
interest on any Securities of such series or of any event of default (other than
an event of default occurring as a consequence of this paragraph) of which the
Trustee has actual knowledge, except that if the notice of redemption of any
Securities of such series shall theretofore have been mailed in accordance with
the provisions hereof, the Trustee shall redeem such Securities if funds
sufficient for that purpose shall be deposited with the Trustee in accordance
with the terms of this Article Four. Except as aforesaid, any moneys in the
sinking fund at the time any such default or event of default shall occur and
any moneys thereafter paid into the sinking fund shall, during the continuance
of such default or event of default, be held as security for the payment of all
the Securities of such series; provided, however, that in case such default or
event of default shall have been cured or waived as provided herein, such moneys
shall thereafter be applied on the next sinking fund payment date on which such
moneys are required to be applied pursuant to the provisions of this Section
4.07.
ARTICLE FIVE
PARTICULAR COVENANTS OF THE COMPANY
The Company hereby covenants and agrees as follows:
SECTION 5.01. The Company will duly and punctually pay the principal of
and premium, if any, on each of the Securities, and the interest which shall
have accrued thereon, at the date and place and in the manner provided in the
Securities and in this Indenture.
SECTION 5.02. The Company will maintain in the city in the United States in
which the Company has its principal business office and in The City of New York,
and may maintain elsewhere, an office or agency where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in the
location, of any such office or agency. If at any time the Company shall fail to
maintain such required office or agency, or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Principal Office of the Trustee. The Company hereby
initially appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
of such purposes and may from time to time rescind such designations; provided,
however, that no such designation shall in any manner result in the creation of
a Security Register or Security Co-Registrar in addition to the Security
Register required to be kept pursuant to
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Section 2.05 and any Security Co-Registrar appointed pursuant to Section 2.05.
The Company will give prompt written notice to the Trustee of any such
designation and any change in the location of any such other office or agency.
SECTION 5.03. If the Company shall at any time act as its own paying agent
with respect to any series of Securities, then, on or before the date on which
the principal of and premium, if any, or interest on any of the Securities of
that series by their terms or as a result of the calling thereof for redemption
shall become payable, the Company will set apart and segregate and hold in trust
for the benefit of the holders of such Securities a sum sufficient to pay such
principal and premium, if any, or interest which shall have so become payable
and will notify the Trustee of its failure to act in that regard and of any
failure by the Company or any other obligor upon the Securities of that series
to make any such payment. If the Company shall appoint, and at the time have, a
paying agent for the payment of the principal of and premium, if any, or
interest on any series of Securities, then, on or before the date on which the
principal of and premium, if any, or interest on any of the Securities of that
series shall become payable as aforesaid, whether by their terms or as a result
of the calling thereof for redemption, the Company will pay to such paying agent
a sum sufficient to pay such principal and premium, if any, or interest, to be
held in trust for the benefit of the holders of such Securities. If such paying
agent shall be other than the Trustee, the Company will cause such paying agent
to execute and deliver to the Trustee an instrument in which such paying agent
shall agree with the Trustee, subject to the provisions of this Section 5.03 and
of Section 11.03, (1) that such paying agent shall hold all sums held by such
paying agent for the payment of the principal of and premium, if any, or
interest on the Securities of that series in trust for the benefit of the
holders of such Securities; (2) that such paying agent shall give to the Trustee
notice of any default by the Company or any other obligor upon the Securities of
that series in the making of any payment of the principal of and premium, if
any, or interest on the Securities of that series when the same shall have
become due and payable; and (3) that such paying agent shall, at any time during
the continuance of any such default, upon the written request of the Trustee,
deliver to the Trustee all sums so held in trust by it.
Anything in this Section 5.03 to the contrary notwithstanding, the Company
may at any time, for the purpose of obtaining a release or satisfaction of this
Indenture or for any other reason, pay or cause to be paid to the Trustee all
sums held in trust by it or by any paying agent other than the Trustee as
required by this Section 5.03, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such paying
agent.
Any money deposited with the Trustee or any paying agent, or then held by
the Company, in trust for the payment of the principal of, premium, if any, or
interest on any Security and remaining unclaimed for three years after such
principal, premium, if any, or interest has become due and payable shall be paid
to the Company on Company request, or (if then held by the Company) shall be
discharged from such trust; and the holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such paying agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such paying agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 5.04. The Company will not at any time directly or indirectly, and
will not permit any Restricted Subsidiary to, create, assume, incur or suffer to
be created, assumed or incurred or to exist any Lien upon any of the properties
of any character of the Company or any Restricted Subsidiary without making
effective provision whereby the Securities then Outstanding shall be secured
equally and ratably with (or prior to) any other obligation or indebtedness so
secured, so long as such other obligation or indebtedness remains
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secured; except, however, that, notwithstanding the foregoing, the Company or
any Restricted Subsidiary, without so securing the Securities, may
(1) lease property to others in the ordinary course of the business of
the Company or any Restricted Subsidiary or lease or sublease any property
if the property subject thereto is not needed by the Company or any
Restricted Subsidiary in the operation of its business;
(2) create, assume and incur such Liens or permit such Liens to be
created, assumed, incurred or to exist provided, in each case, the Lien
secures indebtedness for borrowed money, including purchase money
indebtedness, which is incurred to finance the acquisition of the property
subject to such Lien and in respect of which the creditor has no recourse
against the Company or any Restricted Subsidiary except recourse to such
property or to the proceeds of any sale or lease of such property or both;
(3) make any deposit with or give any form of security to any
governmental agency or other body created or approved by law or
governmental regulation in order to enable the Company or such Restricted
Subsidiary to maintain self-insurance, or to participate in any fund in
connection with workmen's compensation, unemployment insurance, old-age
pensions, or other social security, or to share in any privileges or other
benefits available to corporations participating in any such arrangement,
or for any other purpose at any time required by law or regulation
promulgated by any governmental agency or office as a condition to the
transaction of any business or the exercise of any privilege or license, or
deposit assets of the Company or such Restricted Subsidiary with any surety
company or clerk of any court, or in escrow, as collateral in connection
with, or in lieu of, any bond on appeal by the Company or such Restricted
Subsidiary from any judgment or decree against it, or in connection with
any other proceedings in actions at law or suits in equity by or against
the Company or such Restricted Subsidiary;
(4) incur or suffer to be incurred or to exist upon any of its
property or assets (a) Liens for taxes, assessments or other governmental
charges or levies which are not yet due or are payable without penalty or
of which the amount, applicability or validity is being contested by the
Company or such Restricted Subsidiary in good faith by appropriate
proceedings and the Company or such Restricted Subsidiary shall have set
aside on its books reserves which it deems to be adequate with respect
thereto (segregated to the extent required by generally accepted accounting
principles), provided that foreclosure, distraint, sale or similar
proceedings have not been commenced, (b) the Liens of any judgment, if such
judgment shall not have remained undischarged, or unstayed on appeal or
otherwise, for more than six months, (c) undetermined Liens or charges
incident to construction, (d) materialmen's, mechanics', workmen's,
repairmen's or other like Liens arising in the ordinary course of business
in respect of obligations which are not overdue or which are being
contested by the Company or such Restricted Subsidiary in good faith by
appropriate proceedings, or deposits to obtain the release of such Liens,
or (e) any encumbrances consisting of zoning restrictions, licenses,
easements and restrictions on the use of real property and minor defects
and irregularities in the title thereto, which do not materially impair the
use of such property by the Company or such Restricted Subsidiary in the
operation of its business or the value of such property for the purpose of
such business;
(5) create other Liens incidental to the conduct of its business or
the ownership of its property and assets which were not incurred in
connection with the borrowing of money or the obtaining of advances or
credit, and which do not in the aggregate materially detract from the value
of its property or assets or materially impair the use thereof in the
operation of its business;
(6) create or suffer to be created or to exist in favor of any lender
of moneys or holder of commercial paper of the Company or a Restricted
Subsidiary in the ordinary course of business a banker's lien or right of
offset in the holder of such indebtedness or moneys of the Company or a
Restricted Subsidiary deposited with such lender or holder in the ordinary
course of business;
(7) create or suffer to be created or to exist with respect to any of
its property leasehold or purchase rights, exercisable for a fair
consideration, in favor of any Person which arise in transactions entered
into in the ordinary course of business;
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(8) assume any Lien or permit any Lien to be assumed or exist if any
such Lien is on property or shares of stock of a corporation at the time
the corporation becomes a Restricted Subsidiary or merges into or
consolidates with the Company or a Restricted Subsidiary; provided,
however, that any such Lien may not be assumed or permitted to exist if
such Lien is incurred in anticipation of such corporation becoming a
Restricted Subsidiary or in anticipation of such merger or consolidation;
(9) assume any Lien or permit any Lien to be assumed or exist if any
such Lien is on property at the time the Company or a Restricted Subsidiary
acquires the property; provided, however, that any such Lien may not extend
to any other property owned by the Company or a Restricted Subsidiary at
the time such Lien is assumed;
(10) assume, create or suffer to be created or to exist, such Liens in
an amount not to exceed in the aggregate $15,000,000 at any one time
outstanding, excluding Liens covered by other provisions of clauses (1)
through (9) above; and
(11) create or suffer to be created or to exist in favor of any lender
of moneys, any Lien that secures indebtedness of the Company or a
Restricted Subsidiary; provided that the sum of the following does not
exceed 10% of Consolidated Net Tangible Assets: (a) such indebtedness; plus
(b) other indebtedness of the Company and its Restricted Subsidiaries
secured by Liens on property of the Company and its Restricted
Subsidiaries, excluding indebtedness secured by a Lien existing as of
December 31, 1991 and excluding indebtedness secured by a Lien permitted by
one of clauses (1) through (10) above.
SECTION 5.05. Subject to Section 5.06, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and that of each Subsidiary and the rights and franchises of
the Company and its Subsidiaries; provided, however, that the Company shall not
be required to preserve the corporate existence of any Subsidiary or any such
right or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and the other Subsidiaries taken as a whole and that the loss
thereof is not on balance materially disadvantageous to the holders.
SECTION 5.06. The Company will not consolidate with any other corporation
or accept a merger of any other corporation into the Company or permit the
Company to be merged into any other corporation, or sell or lease all or
substantially all its assets to another corporation, or purchase all or
substantially all the assets of another corporation, unless (i) either the
Company shall be the continuing corporation, or the successor, transferee or
lessee corporation (if other than the Company) shall be organized under the laws
of the United States or any state thereof or the District of Columbia and shall
expressly assume, by indenture supplemental hereto, executed and delivered by
such corporation prior to or simultaneously with such consolidation, merger,
sale or lease, the due and punctual payment of the principal of and interest and
premium, if any, on all the Securities, according to their tenor, and the due
and punctual performance and observance of all the covenants and conditions of
this Indenture to be performed or observed by the Company, and (ii) immediately
after such consolidation, merger, sale, lease or purchase the Company or the
successor, transferee or lessee corporation (if other than the Company) would
not be in default in the performance of any covenant or condition of this
Indenture. A purchase by a Subsidiary of all or substantially all of the assets
of another corporation shall not be deemed to be a purchase of such assets by
the Company.
SECTION 5.07. The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year, a written statement signed by the Chairman of
the Board of Directors, the President, the Principal Financial Officer or
Principal Accounting Officer or the Treasurer or Controller of the Company,
stating that
(a) a review of the activities of the Company during such year with
regard to its compliance with this Indenture has been made under his
supervision, and
(b) to the best of his knowledge, based on such review, the Company
has fulfilled all its obligations under this Indenture throughout such
year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to him and the nature and
status thereof.
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SECTION 5.08. Anything in this Indenture to the contrary notwithstanding,
the Company or any Restricted Subsidiary may fail or omit in any particular
instance to comply with a covenant or condition set forth in Section 5.04 or
5.06 with respect to any series of Securities if the Company shall have obtained
and filed with the Trustee, prior to the time of such failure or omission,
evidence (as provided in Article Seven) of the consent of the holders of at
least 66 2/3% in aggregate principal amount of the Securities of such series at
the time outstanding, either waiving such compliance in such instance or
generally waiving compliance with such covenant or condition, but no such waiver
shall extend to or affect any obligation not waived by the terms of such waiver
or impair any right consequent thereon.
ARTICLE SIX
REMEDIES OF TRUSTEE AND SECURITYHOLDERS
SECTION 6.01. Except where otherwise indicated by the context or where the
term is otherwise defined for a specific purpose, the term "event of default" as
used in this Indenture with respect to Securities of any series shall mean one
of the following described events unless it is either inapplicable to a
particular series or it is specifically deleted or modified in the supplemental
indenture, if any, under which such series of Securities is issued:
(a) the failure of the Company to pay any instalment of interest on
any Security of such series, when and as the same shall become payable,
which failure shall have continued unremedied for a period of 30 days;
(b) the failure of the Company to pay the principal of (and premium,
if any, on) any Security of such series, when and as the same shall become
payable, whether at maturity as therein expressed, by call for redemption
(otherwise than pursuant to a sinking fund), by declaration as authorized
by this Indenture or otherwise;
(c) the failure of the Company to pay a sinking fund instalment, if
any, when and as the same shall become payable by the terms of a Security
of such series, which failure shall have continued unremedied for a period
of 30 days;
(d) the failure of the Company, subject to the provisions of Section
5.08, to observe and perform any other of the covenants or agreements on
the part of the Company contained in this Indenture (other than a covenant
or agreement which has been expressly included in this Indenture solely for
the benefit of a series of Securities other than that series), which
failure shall not have been remedied to the satisfaction of the Trustee, or
without provision deemed by the Trustee to be adequate for the remedying
thereof having been made, for a period of 90 days after written notice
shall have been given to the Company by the Trustee or shall have been
given to the Company and the Trustee by holders of 25% or more in aggregate
principal amount of the Securities of such series then outstanding,
specifying such failure and requiring the Company to remedy the same;
(e) an event of default, as defined in any mortgage, indenture or
instrument, including this Indenture, under which there may be issued, or
by which there may be secured or evidenced, any indebtedness for money
borrowed of the Company, whether such indebtedness now exists or shall
hereafter be created, shall happen and shall result in such indebtedness in
an amount in excess of $5,000,000 becoming or being declared due and
payable prior to the date on which it would otherwise become due and
payable, and such acceleration shall not have been rescinded or annulled,
or such indebtedness shall not have been discharged, within a period of 10
days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the holders of
at least 10% in principal amount of the Outstanding Securities of such
series a written notice specifying such event of default and requiring the
Company to cause such acceleration to be rescinded or annulled or to cause
such indebtedness to be discharged;
(f) the entry by a court having jurisdiction in the premises of a
decree or order for relief in respect of the Company in an involuntary case
under the Federal bankruptcy laws, as now or hereafter constituted,
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or any other applicable Federal or State bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or similar
official) of the Company or for substantially all of its property, or
ordering the winding-up or liquidation of its affairs, which decree or
order shall have remained unstayed and in effect for a period of 90
consecutive days;
(g) the commencement by the Company of a voluntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law now
or hereafter in effect, or the consent by the Company to the entry of an
order for relief in an involuntary case under any such law, or the consent
by the Company to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian or sequestrator (or similar
official) of the Company or for substantially all of its property, or the
making by it of an assignment for the benefit of its creditors; or
(h) the occurrence of any other event of default with respect to
Securities of such series as provided in an Officers' Certificate delivered
pursuant to Section 2.02 or a supplemental indenture applicable to such
series of Securities pursuant to Section 13.01(b).
SECTION 6.02. If any one or more of the above-described events of default
shall happen with respect to Securities of any series at the time outstanding,
then, and in each and every such case, during the continuance of any such event
of default, the Trustee or the holders of 25% or more in principal amount of the
Securities of such series then outstanding may, and upon the written request of
the holders of a majority in principal amount of such Securities then
outstanding the Trustee shall, declare the principal of all the Securities of
such series then outstanding, if not then due and payable, to be due and
payable, and upon any such declaration the same shall become and be immediately
due and payable, anything in this Indenture or in the Securities of such series
contained to the contrary notwithstanding. This provision, however, is subject
to the condition that, if at any time after the principal of all the Securities
of such series shall have been so declared to be due and payable, all arrears of
interest if any, upon all the Securities of such series (with interest, to the
extent that interest thereon shall be legally enforceable, on any overdue
instalment of interest at the rate borne by the Securities of such series) and
the reasonable charges and expenses of the Trustee, its agents and attorneys,
and all other sums payable under this Indenture (except the principal of the
Securities of such series which would not be due and payable were it not for
such declaration), shall be paid by the Company, and every other default and
event of default under this Indenture shall have been made good to the
reasonable satisfaction of the Trustee or of the holders of a majority in
principal amount of the Securities of such series then outstanding, or provision
deemed by the Trustee or by such holders to be adequate therefor shall have been
made, then and in every such case the holders of a majority in principal amount
of the Securities of such series then outstanding may, on behalf of the holders
of all the Securities of such series, waive the event of default by reason of
which the principal of the Securities of such series shall have been so declared
to be due and payable and may rescind and annul such declaration and its
consequences; but no such waiver, rescission or annulment shall extend to or
affect any subsequent default or event of default or impair any right consequent
thereon. Any declaration by the Trustee pursuant to this Section 6.02 shall be
by written notice to the Company, and any declaration or waiver by the holders
of Securities of any series pursuant to this Section 6.02 shall be by written
notice to the Company and the Trustee.
The Company and the Trustee may, to the extent provided in Section 13.01,
enter into one or more indentures supplemental hereto with respect to any series
of the Securities which may provide for additional or different events of
default with respect to such series of Securities.
SECTION 6.03. If the Company shall fail for a period of 30 days to pay any
instalment of interest on the Securities of any series or shall fail to pay the
principal of and premium, if any, on any of the Securities of such series when
and as the same shall become due and payable, whether at maturity, or by call
for redemption (otherwise than pursuant to the sinking fund), by declaration as
authorized by this Indenture, or otherwise, or shall fail for a period of 30
days to make any sinking fund payment as to a series of Securities, then, upon
demand by the Trustee, the Company will pay to the Trustee for the benefit of
the holders of Securities of such series then outstanding the whole amount which
then shall have become due and payable on
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all the Securities of such series, with interest on the overdue principal and
premium, if any, and (so far as the same may be legally enforceable) on the
overdue installments of interest at the rate borne by the Securities of such
series, and reasonable compensation to the Trustee, its agents and attorneys,
and any other reasonable expenses and liabilities incurred by the Trustee under
this Indenture without negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceeding at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor upon the
Securities of such series, and collect the moneys adjudged or decreed to be
payable out of the property of the Company or any other obligor upon the
Securities of such series, and collect the moneys adjudged or decreed to be
payable out of the property of the Company or any other obligor upon the
Securities of such securities, wherever situated, in the manner provided by law.
Every recovery of judgment in any such action or other proceeding, subject to
the payment of the expenses, disbursements and compensation of the Trustee, its
agents and attorneys, shall be for the ratable benefit of the holders of such
series of Securities which shall be the subject of such action or proceeding.
All rights of action upon or under any of the Securities or this Indenture may
be enforced by the Trustee without the possession of any of the Securities and
without the production of any thereof at any trial or any proceeding relative
thereto.
SECTION 6.04. The Trustee is hereby appointed, and each and every holder
of the Securities, by receiving and holding the same, shall be conclusively
deemed to have appointed the Trustee, the true and lawful attorney-in-fact of
such holder, with authority to make or file (whether or not the Company shall be
in default in respect of the payment of the principal of, or interest on, any of
the Securities), in its own name and as trustee of an express trust or otherwise
as it shall deem advisable, in any receivership, insolvency, liquidation,
bankruptcy, reorganization or other judicial proceeding relative to the Company
or any other obligor upon the Securities or to their respective creditors or
property, any and all claims, proofs of claim, proofs of debt, petitions,
consents, other papers and documents and amendments of any thereof, as may be
necessary or advisable in order to have the claims of the Trustee and of the
holders of the Securities allowed in any such proceeding and to collect and
receive any moneys or other property payable or deliverable on any such claim,
and to execute and deliver any and all other papers and documents and to do and
perform any and all other acts and things, as it may deem necessary or advisable
in order to enforce in any such proceeding any of the claims of the Trustee and
of any of such holders in respect of any of the Securities; and any receiver,
assignee, trustee, custodian or debtor in any such proceeding is hereby
authorized, and each and every holder of the Securities, by receiving and
holding the same, shall be conclusively deemed to have authorized any such
receiver, assignee, trustee, custodian or debtor, to make any such payment or
delivery only to or on the order of the Trustee, and to pay to the Trustee any
amount due if for compensation and expenses, including counsel fees, incurred by
it to the date of such payment or delivery; provided, however, that nothing
herein contained shall be deemed to authorize or empower the Trustee to consent
to or accept or adopt, on behalf of any holder of Securities, any plan of
reorganization or readjustment of the Company affecting the Securities or the
rights of any holder thereof, or to authorize or empower the Trustee to vote in
respect of the claim of any holder of any Securities in any such proceeding.
SECTION 6.05. Any moneys collected by the Trustee with respect to a series
of Securities under this Article Six shall be applied in the order following, at
the date or dates fixed by the Trustee for the distribution of such moneys, upon
presentation of the several Securities, and stamping thereon the payment, if
only partially paid, and upon surrender thereof if fully paid:
First: To the payment of all costs and expenses in connection with the
collection of such moneys and all amounts due to the Trustee under Section
10.05.
Second: In case the principal of the outstanding Securities of such
series shall not have become due and be unpaid, to the payment of interest
on the Securities of such series, in the order of the maturity of the
installments of such interest, with interest (to the extent that such
interest has been collected by the Trustee) upon the overdue installments
of interest at the rate borne by such Securities, such payments to be made
ratably to the persons entitled thereto.
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Third: In case the principal of the outstanding Securities of such
series shall have become due, by declaration or otherwise, to the payment
of the whole amount then owing and unpaid upon the Securities of such
series for principal and premium, if any, and interest, with interest on
the overdue principal and premium, if any, and (to extent that such
interest has been collected by the Trustee) upon overdue installments of
interest at the rate borne by the Securities of such series, and in case
such moneys shall be insufficient to pay in full the whole amounts so due
and unpaid upon the Securities of such series, then to the payment of such
principal and premium, if any, and interest without preference or priority
of principal and premium, if any, over interest, or of interest over
principal and premium, if any, or of any instalment of interest over any
other instalment of interest, or of any Security of such series over any
other Security of such series, ratably to the aggregate of such principal
and premium, if any, and accrued and unpaid interest.
Any surplus then remaining shall be paid to the Company or to such other persons
as shall be entitled to receive it.
SECTION 6.06. The holders of a majority in principal amount of the
Securities of any series at the time outstanding may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee
hereunder, or of exercising any trust or power hereby conferred upon the Trustee
with respect to the Securities of such series, provided, however, that, subject
to the provisions of Section 10.02, the Trustee shall have the right to decline
to follow any such direction if the Trustee being advised by counsel determines
that the action so directed may not lawfully be taken. Prior to any declaration
accelerating the maturity of the Securities of any series, the holders of a
majority in aggregate principal amount of such series of Securities at the time
outstanding may on behalf of the holders of all of the Securities of such series
waive any past default or event of default hereunder and its consequences except
a default in the payment of interest or any premium on or the principal of the
Securities of such series. Upon any such waiver the Company, the Trustee and the
holders of the Securities of such series shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to
any subsequent or other default or event of default or impair any right
consequent thereon. Whenever any default or event of default hereunder shall
have been waived as permitted by this Section 6.06, said default or event of
default shall for all purposes of the Securities of such series and this
Indenture be deemed to have been cured and to be not continuing.
SECTION 6.07. No holder of any Security of any series shall have any right
to institute any action, suit or proceeding at law or in equity for the
execution of any trust hereunder or for the appointment of a receiver or for any
other remedy hereunder, in each case with respect to an event of default with
respect to such series of Securities, unless such holder previously shall have
given to the Trustee written notice of the happening of one or more of the
events of default herein specified with respect to such series of Securities,
and unless also the holders of 25% in principal amount of the Securities of such
series then outstanding shall have requested the Trustee in writing to take
action in respect of the matter complained of, and unless also there shall been
offered to the Trustee security and indemnity satisfactory to it against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after receipt of such notification, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding; and such notification, request and offer of indemnity are hereby
declared in every such case to be conditions precedent to any such action, suit
or proceeding by any holder of any Security of such series; it being understood
and intended that no one or more of the holders of Securities of such series
shall have any right in any manner whatsoever by his or their action to enforce
any right hereunder, except in the manner herein provided, and that every
action, suit or proceeding at law or in equity shall be instituted, had and
maintained in the manner herein provided and for the equal benefit of all
holders of the outstanding Securities of such series; provided, however, that
nothing in this Indenture or in the Securities of such series contained shall
affect or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on the
Securities of such series to the respective holders of such Securities at the
respective due dates in such Securities stated, or affect or impair the right,
which is also absolute and unconditional, of such holders to institute suit is
enforce the payment thereof; provided, further, that in the event property or
assets are conveyed, transferred, assigned, mortgaged or pledged to the Trustee
as security for one or more series of Securities, no holder of Securities shall
be entitled to take any action or institute any suit to enforce the
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payment of his Securities, whether for principal, interest or premium, if any,
to the extent that the taking of such action or the institution or prosecution
of any such suit or the entry of judgment therein would under applicable law
result in a surrender, impairment, waiver or loss of the lien of this Indenture,
if any, upon the trust estate so created by such conveyance, transfer,
assignment, mortgage or pledge, or any part thereof, as security for Securities
held by any other holder.
SECTION 6.08. All parties to this Indenture and the holders of the
Securities agree that the court may in its discretion require, in any action,
suit or proceeding for the enforcement of any right or remedy under this
Indenture, or in any action, suit or proceeding against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in
such action, suit or proceeding of an undertaking to pay the costs of such
action, suit or proceeding, and that such court may in its discretion assess
reasonable costs, including reasonably attorney's fees, against any party
litigant in such action, suit or proceeding, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; provided,
however, that the provisions of this Section 6.08 shall not apply to any action,
suit or proceeding instituted by the Trustee, to any action, suit or proceeding
instituted by any one or more holders of Securities holding in the aggregate
more than 10% in principal amount of the Securities of any series outstanding,
or to any action, suit or proceeding instituted by any holder of Securities of
any series for the enforcement of the payment of the principal of or premium, if
any, or the interest on, any of the Securities of such series, on or after the
respective due dates expressed in such Securities.
SECTION 6.09. No remedy herein conferred upon or reserved to the Trustee
or to the holders of Securities of any series is intended to be exclusive of any
other remedy or remedies, and each and every remedy shall be cumulative and
shall be in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute. No delay or omission of the Trustee
or of any holder of the Securities of any series to exercise any right or power
accruing upon any default or event of default shall impair any such right or
power or shall be construed to be a waiver of any such default or event of
default or an acquiescence therein, and every power and remedy given by this
Article Six to the Trustee and to the holders of Securities of any series,
respectively, may be exercised from time to time and as often as may be deemed
expedient by the Trustee or by the holders of Securities of such series, as the
case may be. In case the Trustee or any holder of Securities of any series shall
have proceeded to enforce any right under this Indenture and the proceedings for
the enforcement thereof shall have been discontinued or abandoned because of
waiver or for any other reason or shall have been adjudicated adversely to the
Trustee or to such holder of Securities, then and in every such case the
Company, the Trustee and the holders of the Securities of such series shall
severally and respectively be restored to their former positions and rights
hereunder and thereafter all rights, remedies and powers of the Trustee and the
holders of the Securities of such series shall continue as though no such
proceedings had been taken, except as to any matters so waived or adjudicated.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Whenever in this Indenture it is provided that the holders
of a specified percentage or a majority in aggregate principal amount of the
Securities or of any series of Securities may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action), the fact that at the time of taking any such
action the holders of such specified percentage or majority have joined therein
may be evidenced (a) by any instrument or any number of instruments of similar
tenor executed by Securityholders in person or by agent or proxy appointed in
writing, or (b) by the record of the holders of Securities voting in favor
thereof at any meeting of Securityholders duly called and held in accordance
with the provisions of Article Eight, or (c) by a combination of such instrument
or instruments and any such record of such a meeting of Securityholders.
SECTION 7.02. Proof of the execution of any instrument by a Securityholder
or his agent or proxy and proof of the holding by any person of any of the
Securities shall be sufficient if made in the following manner:
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The fact and date of the execution by any person of any such instrument may
be proved (a) by the certificate of any notary public or other officer in any
jurisdiction who, by the laws thereof, has power to take acknowledgements or
proof of deeds to be recorded within such jurisdiction, that the person who
signed such instrument did acknowledge before such notary public or other
officer the execution thereof, or (b) by the affidavit of a witness of such
execution sworn to before any such notary or other officer. Where such execution
is by a person acting in other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority.
The ownership of Securities shall be proved by the Security Register of
such Securities or by a certificate of the Security Registrar thereof.
The Trustee may accept such other proof or may require such additional
proof of any matter referred to in this Section 7.02 as it shall deem
appropriate or necessary.
SECTION 7.03. In determining whether the holders of the requisite
principal amount of the Securities have concurred in any direction, request,
waiver or consent under this Indenture, Securities which are owned by the
Company or by any other obligor on the Securities or by any person directly or
indirectly controlling, or controlled by, or under direct or indirect common
control with, the Company or any such other obligor shall be disregarded, except
that for the purpose of determining whether the Trustee shall be protected in
relying on any such direction, request, waiver or consent, only Securities which
the Trustee knows are so owned shall be disregarded. Securities so owned which
have been pledged in good faith may be regarded as outstanding for the purposes
of this Section 7.03 if the pledgee shall establish to the satisfaction of the
Trustee the pledgee's right to vote such Securities and that the pledgee is not
a person directly or indirectly controlling, or controlled by, or under direct
or indirect common control with, the Company or any such other obligor. In case
of a dispute as to such right, any decision by the Trustee taken upon the advice
of counsel shall be full protection to the Trustee.
SECTION 7.04. At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 7.01, of the taking of any action by the holders
of the percentage in aggregate principal amount of the Securities or of any
series of Securities specified in this Indenture in connection with such action,
any holder of a Security which is shown by the evidence to be included in the
Securities the holders of which have consented to such action may, by filing
written notice with the Trustee at its principal office and upon proof of
holding as provided in Section 7.02, revoke such action so far as concerns such
Security. Except as aforesaid, any such action taken by the holder of any
Security shall be conclusive and binding upon such holder and upon all future
holders and owners of such Security, irrespective of whether or not any notation
in regard thereto is made upon such Security or any Security issued in exchange
or substitution therefor.
ARTICLE EIGHT
SECURITYHOLDERS' MEETINGS
SECTION 8.01. A meeting of Securityholders may be called at any time and
from time to time pursuant to the provisions of this Article Eight for any of
the following purposes:
(a) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to
be taken by Securityholders pursuant to any of the provisions of Article
Six;
(b) to remove the Trustee and nominate a successor trustee pursuant to
the provisions of Article Ten;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 13.02; or
(d) to take any other action authorized to be taken by or on behalf of
the holders of any specified aggregate principal amount of the Securities
of any one or more or all series, as the case may be, under any other
provision of this Indenture or under applicable law.
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SECTION 8.02. The Trustee may at any time call a meeting of
Securityholders of all series, that may be affected by the action proposed to be
taken, to take any action specified in Section 8.01, to be held at such time and
at such place as the Trustee shall determine. Notice of every meeting of the
Securityholders of a series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be mailed to holders of Securities of such series at their addresses as
they shall appear on the Security Register (including the records of any
Security Co-Registrar). Such notice shall be mailed not less than 20 nor more
than 90 days prior to the date fixed for the meeting.
SECTION 8.03. In case at any time the Company, pursuant to a resolution of
its Board of Directors, or the holders of at least 10% in aggregate principal
amount of the Securities of a series then outstanding that may be affected by
the action proposed to be taken, shall have requested the Trustee to call a
meeting of Securityholder of such series, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed the notice of such meeting within 20 days after
receipt of such request, then the Company or such Securityholders may determine
the time and the place for such meeting and may call such meeting to take any
action authorized in Section 8.01, by mailing notice thereof as provided in
Section 8.02.
SECTION 8.04. To be entitled to vote at any meeting of Securityholders a
person shall (a) be a holder of one or more Securities of a series affected by
the action proposed to be taken at the meeting or (b) be a person appointed by
an instrument in writing as proxy by a holder of one or more such Securities.
The only persons who shall be entitled to be present or to speak at any meeting
of Securityholders shall be the persons entitled to vote at such meeting and
their counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 8.05. Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Securityholders, in regard to proof of the holding of Securities and
of the appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 8.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 7.03, at any meeting of
Securityholders of a series each Securityholder of such series or such
Securityholder's proxy shall be entitled to one vote for each $1,000 principal
amount of Securities of such series outstanding held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not outstanding and ruled by the chairman
of the meeting to be not outstanding. The chairman of the meeting shall have no
right to vote other than by virtue of Securities of such series held by him or
instruments in writing as aforesaid duly designating him as the person to vote
on behalf of other Securityholders of such series. At any meeting of the
Securityholders duly called pursuant to the provisions of Section 8.02 or 8.03
the presence of persons holding or representing Securities in an aggregate
principal amount sufficient to take action upon the business for the transaction
of which such meeting was called shall be necessary to constitute a quorum, and
any such meeting may be adjourned from time to time by a majority of those
present, whether or not constituting a quorum, and the meeting may be held as so
adjourned without further notice.
SECTION 8.06. The vote upon any resolution submitted to any meeting of
Securityholders of a series shall be by written ballots on which shall be
subscribed the signatures of the holders of Securities of such series or of
their representatives by proxy and the principal amounts of the Securities of
such series held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Securityholders shall be prepared by the secretary of the meeting and
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there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was mailed as provided in Section 8.02. The record
shall show the principal amounts of the Securities voting in favor of or against
any resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Company and the other to the Trustee to be preserved by the
Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 8.07. Nothing contained in this Article Eight shall be deemed or
construed to authorize or permit, by reason of any call of a meeting of
Securityholders of any series or any rights expressly or impliedly conferred
hereunder to make such call, any hindrance or delay in the exercise of any right
or rights conferred upon or reserved to the Trustee or to the Securityholders of
such series under any of the provisions of this Indenture or of the Securities
of such series.
ARTICLE NINE
REPORTS BY THE COMPANY AND THE TRUSTEE
AND SECURITYHOLDERS' LISTS
SECTION 9.01. In accordance with Section 312(a) of the Trust Indenture
Act, the Company shall furnish or cause to be furnished to the Trustee:
(a) semi-annually with respect to Securities of each series on January
15 and July 15 of each year or upon such other dates as are set forth in or
pursuant to the Board Resolution or indenture supplemental hereto
authorizing such series, a list, in each case, in such form as the Trustee
may reasonably require, of the names and addresses of holders as of the
applicable date; and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
provided, however, that so long as the Trustee is the Security Registrar no such
list shall be required to be furnished.
SECTION 9.02. The Trustee shall comply with the obligations imposed upon
it pursuant to Section 312 of the Trust Indenture Act.
Every holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company, the Trustee, any Paying
Agent or any Security Registrar shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the holders
of Securities in accordance with Section 312 of the Trust Indenture Act,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under Section 312(b) of the Trust Indenture Act.
SECTION 9.03. (a) Within 60 days after May 15 of each year commencing with
the first May 15 following the first issuance of Securities, if required by
Section 313(a) of the Trust Indenture Act, the Trustee shall transmit, pursuant
to Section 313(c) of the Trust Indenture Act, a brief report dated as of such
May 15 with respect to any of the events specified in said Section 313(a) which
may have occurred since the later of the immediately preceding May 15 and the
date of this Indenture.
(b) The Trustee shall transmit the reports required by Section 313(b) of
the Trust Indenture Act and Section 10.11 hereof at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted in the manner and
to the Persons required by Sections 313(c) and 313(d) of the Trust Indenture
Act.
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SECTION 9.04. The Company, pursuant to Section 314(a) of the Trust
Indenture Act, shall:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it shall file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(b) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(c) transmit to the holders within 30 days after the filing thereof
with the Trustee, in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE TEN
CONCERNING THE TRUSTEE
SECTION 10.01. Subject to Sections 315(a) through 315(d) of the Trust
Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by an Officers' Certificate and any resolution of
the Board of Directors or any committee thereof (or committee of officers
or other representatives of the Company, to the extent any such committee
or committees have been so authorized by the Board of Directors) may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence shall be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by or pursuant to this Indenture at the
request or direction of any of the holders of Securities of any series
pursuant to this Indenture, unless such holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(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,
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bond, debenture, coupon or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine,
during business hours and upon reasonable notice, the books, records and
premises of the Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 10.02. The recitals contained herein and in the Securities, except
those referring or relating to the Trustee or any of its agents, and except for
the Trustee's certificate of authentication, shall be taken as the statements of
the Company and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities, except that
the Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations hereunder and
that the statements made by it in a Statement of Eligibility and Qualification
on Forms T-1 supplied to the Company are and will be true and accurate, subject
to the qualifications set forth therein. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of the Securities or the proceeds thereof.
SECTION 10.03. The Trustee, any Authenticating Agent, any Security
Registrar or any other Person that may be an agent of the Trustee or the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons and, subject to Sections 310(b) and 311 of the
Trust Indenture Act, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Authenticating Agent, Security Registrar or
such other Person.
SECTION 10.04. Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law and, subject to
Section 11.02 hereof, may be invested in direct obligations of the United States
of America in such amounts and with such maturities that will ensure that the
principal of such obligations, together with the income thereon (without
consideration of any reinvestment thereof), will be sufficient to pay all sums
due for principal of, premium, if any, and interest on the Securities, as they
become due from time to time. The Trustee shall be under no liability for
interest on any money received by it or for losses on any investments made by it
pursuant to this Section 10.04 except as otherwise agreed with the Company.
SECTION 10.05. The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by the Trustee hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to
the Trustee's negligence or bad faith; and
(3) to indemnify the Trustee and its agents for, and to hold them
harmless against, any loss, liability or expense incurred without
negligence or bad faith on their part (excluding, for so long as no event
of default hereunder has occurred and is continuing, any settlement that
has not been approved by the Company in writing prior to any such
settlement) arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of their powers or
duties hereunder, except to the extent that any such loss, liability or
expense was due to the Trustee's negligence or bad faith.
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The obligations of the Company under this Section to compensate and
indemnify the Trustee and each predecessor Trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture.
SECTION 10.06. (a) There shall at all times be a Trustee hereunder that is
a corporation permitted by the Trust Indenture Act to act as trustee under an
indenture qualified under the Trust Indenture Act and that has a combined
capital and surplus (computed in accordance with Section 310(a)(2) of the Trust
Indenture Act) of at least $25,000,000. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
(b) The following indentures shall be considered specifically described
herein for purposes of clause (i) of the proviso contained in Section 310(b)(l)
of the Trust Indenture Act: Indenture dated as of August 1, 1984 between the
Company and the Trustee (with respect to the Company's Medium-Term Notes, Series
1), Indenture dated as of August 1, 1984 between the Company and the Trustee
(with respect to the Company's MediumTerm Notes, Series 2) and Indenture dated
as of June 1, 1985 between the Company and the Trustee.
SECTION 10.07. (a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee pursuant
to Section 10.08.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 10.08 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to such
series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the obligations imposed upon
it under Section 310(b) of the Trust Indenture Act with respect to
Securities of any series after written request therefor by the Company or
any holder of a Security of such series who has been a bona fide holder of
a Security of such series for at least six months; or
(2) the Trustee shall cease to be eligible under Section 10.06 and
shall fail to resign after written request therefor by the Company or any
such holder; or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company, by or pursuant to a Board Resolution,
may remove the Trustee with respect to all Securities or the Securities of such
series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any holder
of a Security who has been a bona fide holder of a Security of such series for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities of such series and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series which shall occur only with the express
prior written consent of the Company, the Company, by or pursuant to a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it
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being understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 10.08. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 10.08, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the holders of Securities and accepted appointment in the manner required by
Section 10.08, any holder of a Security who has been a bona fide holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
holders of Securities of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
SECTION 10.08. (a) Upon the appointment hereunder of any successor Trustee
with respect to all Securities, such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties hereunder of the retiring Trustee; but, on the
request of the Company or such successor Trustee, such retiring Trustee, upon
payment of its charges, shall execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring Trustee
and, subject to Section 5.03, shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder, subject nevertheless to its claim, if any, provided for in Section
10.05.
(b) Upon the appointment hereunder of any successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and such successor Trustee shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, such successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee and that no Trustee shall be responsible
for any notice given to, or received by, or any act or failure to act on the
part of any other Trustee hereunder, and, upon the execution and delivery of
such supplemental indenture, the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein, such retiring Trustee
shall have no further responsibility for the exercise of rights and powers or
for the performance of the duties and obligations vested in the Trustee under
this Indenture with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates other than as hereinafter
expressly set forth, and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts
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and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on
request of the Company or such successor Trustee, such retiring Trustee, upon
payment of its charges with respect to the Securities of that or those series to
which the appointment of such successor relates and subject to Section 5.03
shall duly assign, transfer and deliver to such successor Trustee, to the extent
contemplated by such supplemental indenture, the property and money held by such
retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any Person appointed hereunder as a successor Trustee,
the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No Person shall accept its appointment hereunder as a successor Trustee
unless at the time of such acceptance such successor Person shall be qualified
and eligible under this Article.
SECTION 10.09. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall have been
authenticated but not delivered by the Trustee then in office, any successor by
merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 10.10. The Trustee may appoint one or more Authenticating Agents
acceptable to the Company with respect to one or more series of Securities which
shall be authorized to act on behalf of the Trustee to authenticate Securities
of that or those series issued upon original issue, exchange, registration of
transfer, partial redemption or pursuant to Section 2.06, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and, except as
provided in or pursuant to this Indenture, shall at all times be a corporation
that would be permitted by the Trust Indenture Act to act as trustee under an
indenture qualified under the Trust Indenture Act, is authorized under
applicable law and by its charter to act as an Authenticating Agent and has a
combined capital and surplus (computed in accordance with Section 310(a)(2) of
the Trust Indenture Act) of at least $5,000,000. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall be the successor of
such Authenticating Agent hereunder, provided such Corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall (i) mail written notice
of such appointment by first-class mail, postage prepaid, to all holders of
Securities of the series with respect to which such Authenticating
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Agent shall serve, as their names and addresses appear in the Security Register.
Any successor Authenticating Agent, upon acceptance of its appointment
hereunder, shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The provisions of Sections 2.05, 10.02 and 10.03 shall be applicable to
each Authenticating Agent.
If all of the Securities of any series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not be
accompanied by or contained in an Officers' Certificate by the Company), shall
appoint in accordance with this Section an Authenticating Agent having an office
in a Place of Payment designated by the Company with respect to such series of
Securities.
SECTION 10.11. The Trustee shall, within ninety days after the occurrence
of a default with respect to the Securities of any series, mail to all holders
of Securities of that series entitled to receive reports pursuant to Section
9.03, notice of all defaults with respect to that series known to the Trustee,
unless such defaults shall have been cured before the giving of such notice;
provided, however, that, except in the case of default in the payment of the
principal of, premium, if any, or interest on any of the Securities of such
series or in the making of any sinking fund payment with respect to such series,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors or trustees, the executive committee, or a trust committee of
directors or trustees or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of Securities of such series. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an event of default hereunder.
ARTICLE ELEVEN
DEFEASANCE
SECTION 11.01. If and when the principal of, and the premium, if any, and
the interest on, all the Securities outstanding hereunder and all other sums due
hereunder shall have been well and truly paid at the times and in the manner
therein and herein expressed, this Indenture shall cease and determine, and, at
the written request of the Company, accompanied by the Officers' Certificate and
Opinion of Counsel required by Section 14.03, and upon proof being given to the
reasonable satisfaction of the Trustee that all the Securities have been paid or
satisfied and upon payment of the costs, charges and expenses incurred or to be
incurred by the Trustee in relation thereto or in carrying out the provisions of
this Indenture, the Trustee shall cancel this Indenture and execute and deliver
to the company such instruments as shall be requisite to evidence the
satisfaction hereof.
SECTION 11.02. If, at any time after the date hereof, the Company shall
deposit with the Trustee, in trust for the benefit of the holders thereof, (i)
funds sufficient to pay, or (ii) such amount of direct obligations of the United
States of America as will or will together with the income thereon without
consideration of any reinvestment thereof be sufficient to pay, all sums due for
principal of, premium, if any, and interest on the Securities of a particular
series, as they shall become due from time to time, and shall pay all costs,
charges and expenses incurred or to be incurred by the Trustee in relation
thereto or in carrying out the provisions of this Indenture in relation thereto,
this Indenture shall cease to be of further effect with respect to Securities of
such series (except as to (i) rights of registration of transfer, substitution
and exchange of Securities of such series, (ii) rights of holders to receive
payments of principal of, premium, if any, and interest on the Securities of
such series as they shall become due from time to time and other rights, duties
and obligations of Securityholders as beneficiaries hereof with respect to the
amounts so deposited with the Trustee, and (iii) the rights, obligations and
immunities of the Trustee hereunder (for which purposes the Securities of such
series shall be deemed outstanding)), and the Trustee, on the written request of
the Company, accompanied by the Officers' Certificate and Opinion of Counsel
required by Section 14.03, and an Opinion of Counsel to the effect that holders
of the Securities of such series will not recognize income, gain or loss for
Federal income
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tax purposes as a result of the Company's action under this Section 11.02 and
will be subject to Federal income tax in the same amount, in the same manner and
at the same times as would have been the case if such action had not been taken,
shall execute and deliver to the Company such instruments as shall be requisite
to evidence the satisfaction thereof with respect to Securities of such series.
The Trustee shall apply the moneys so deposited solely to the payment to the
holders of the Securities of such series of all sums due thereon for principal,
premium, if any, and interest, and the Trustee shall have no claim for itself,
for fees, expenses or otherwise, to such moneys so deposited.
SECTION 11.03. Neither the Trustee nor any other paying agent shall be
required to pay interest on any moneys deposited pursuant to the provisions of
this Indenture, except such as it shall agree with the Company to pay thereon.
Any moneys so deposited for the payment of the principal of, premium, if any, of
interest on the Securities of any series and remaining unclaimed for three years
after the date of the maturity of the Securities of such series or the date
fixed for the redemption of all the Securities of such series at the time
outstanding, as the case may be, shall be repaid by the Trustee or such other
paying agent to the Company upon its written request and thereafter, anything in
this Indenture to the contrary notwithstanding, any rights of the holders of
Securities of such series in respect of which such moneys shall have been
deposited shall be enforceable only against the Company, and all liability of
the Trustee or such other paying agent with respect to such moneys shall
thereafter cease.
Subject to the provisions of the foregoing paragraph, any moneys which at
any time shall be deposited by the Company or on its behalf with the Trustee or
any other paying agent for the purpose of paying the principal of, premium, if
any, and interest on any of the Securities shall be and are hereby assigned,
transferred and set over to the Trustee or such other paying agent in trust for
the respective holders of the Securities for the purpose for which such moneys
shall have been deposited; but such moneys need not be segregated from other
funds except to the extent required by law.
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
SECTION 12.01. No recourse shall be had for the paying of the principal
of, or the premium, if any, or interest on, any Security or for any claim based
thereon or otherwise in respect thereof or of the indebtedness represented
thereby, or upon any obligation, covenant or agreement of this Indenture,
against any incorporator, stockholder, officer, director or employee, as such,
past, present or future, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, whether by virtue
of any constitutional provision, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise; it being expressly agreed and
understood that this Indenture and the Securities are solely corporate
obligations, and that no personal liability whatsoever shall attach to, or be
incurred by, any incorporator, stockholder, officer, director or employee, as
such, past, present or future, of the Company or of any successor corporation,
either directly or through the Company or any successor corporation, because of
the incurring of the indebtedness hereby authorized or under or by reason of any
of the obligations, covenants, promises or agreements contained in this
Indenture or in any of the Securities or to be implied herefrom or therefrom,
and that all liability, if any, of that character against every such
incorporator, stockholder, officer, director and employee is, by the acceptance
of the Securities and as a condition of, and as part of the consideration for,
the execution of this Indenture and the issue of the Securities expressly waived
and released.
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ARTICLE THIRTEEN
SUPPLEMENTAL INDENTURES
SECTION 13.01. The Company (when authorized by resolution of its Board of
Directors) and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any one or more of the following purposes:
(a) to add to the covenants and agreements of the Company, to be
observed thereafter and during the period, if any, in such supplemental
indenture or indentures expressed, to surrender any right or power
hereunder conferred upon the Company, and to add events of default, in each
case for the protection or benefit of the holders of all or any series of
the Securities (and if such covenants, agreements, surrender of rights or
powers and events of default are to be for the benefit of fewer than all
series of Securities, stating that such covenants, agreements, surrender of
rights or powers and events of default are expressly being included for the
benefit of such series as shall be identified therein);
(b) to change or eliminate any provisions of the Indenture with
respect to all or any series of the Securities not then outstanding (and,
if such change is applicable to fewer than all such series of the
Securities, specifying the series to which such change is applicable), and
to specify the rights and remedies of the Trustee and the holders of such
Securities in connection therewith;
(c) to evidence the succession of another corporation to the Company,
the Trustee, or successive successions, and the assumption by a successor,
transferee or lessee corporation of the covenants and obligations of the
Company or Trustee, as the case may be, contained in the Securities of one
or more series or in this Indenture;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any indenture supplemental hereto which may be
defective or inconsistent with any other provision contained herein or in
any supplemental indenture, or to make any other provision in regard to
matters or questions arising under this Indenture which the Board of
Directors of the Company may deem necessary or desirable and which shall
not adversely affect the interests of the holders of the Securities;
(e) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities any property or assets which the Company may be
required to convey, transfer, assign, mortgage or pledge in accordance with
the provisions of Section 5.04;
(f) to prohibit the authentication and delivery of additional series
of Securities;
(g) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal
and with or without interest coupons;
(h) to establish the form and terms of the Securities of any series as
permitted in Sections 2.01 and 2.02, or to authorize the issuance of
additional Securities of a series previously authorized or to add to the
conditions, limitations or restrictions on the authorized amount, terms or
purposes of issue, authentication or delivery of the Securities of any
series, as herein set forth, or other conditions, limitations or
restrictions thereafter to be observed; and
(i) to modify, alter, amend or supplement this Indenture in any other
respect which is not materially adverse to the holders, so long as such
change does not require the consent of the holders pursuant to any other
provision of this Indenture and is not inconsistent with any other
provisions of this Indenture and which, in the judgment of the Trustee, is
not to the prejudice of the Trustee and maintains adequate protection to
the Trustee when the same becomes operative.
Subject to the provisions of Section 13.03, the Trustee is authorized to
join with the Company in the execution of any such supplemental indenture, to
make the further agreements and stipulations which may be therein contained and
to accept the conveyance, transfer, assignment, mortgage or pledge of any
property or assets thereunder.
34
<PAGE> 41
Any supplemental indenture authorized by the provisions of this Section
13.01 may be executed by the Company and the Trustee without the consent of the
holders of any of the Securities at the time outstanding, notwithstanding any of
the provisions of Section 13.02.
SECTION 13.02. With the consent (evidenced as provided in Article Seven)
of the holders of not less than 66 2/3% in aggregate principal amount of the
Securities at the time outstanding which are affected by such indenture
supplemental hereto, the Company, when authorized by a resolution of its Board
of Directors, and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the holders of the
Securities of any series to be affected; provided, however, that no such
supplemental indenture shall (i) extend the fixed maturity of any Securities, or
reduce the rate or extend the time of payment of interest thereon, or reduce the
amount of the principal thereof, or reduce any premium payable upon the
redemption thereof, or make the principal thereof or interest or premium thereon
payable in any coin or currency other than that provided in the Securities, or
impair the right to institute suit for the enforcement of any such payment on or
after the maturity thereof as provided in Section 6.07, without the consent of
the holder of each Security so affected, or (ii) reduce the aforesaid percentage
of Securities of any series, the holders of which are required to consent to any
such supplemental indenture, without the consent of the holders of all the
Securities then outstanding, or (iii) modify, without the written consent of the
Trustee, the rights, duties or immunities of the Trustee.
A supplemental indenture which changes or eliminates any provision of this
Indenture which has expressly been included solely for the benefit of one or
more particular series of Securities, or which modifies the rights of the
holders of Securities of such series with respect to such provision, shall be
deemed not to affect the rights under this Indenture of the holders of
Securities of any other series.
It shall not be necessary for the consent of the Securityholders under this
Section 13.02 to approve the particular form of any proposed supplemental
Indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 13.02, the
Company shall mail a notice, setting forth in general terms the substance of
such supplemental indenture, to the holders of Securities affected by such
supplemental indenture at their addresses as the same shall then appear in the
register of the Company. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
SECTION 13.03. Upon the request of the Company, accompanied by the
Officers' Certificate and Opinion of Counsel required by Section 14.03 and by
(a) a supplemental indenture duly executed on behalf of the Company,
(b) a copy of a resolution of the Board of Directors of the Company,
certified by the Secretary or an Assistant Secretary of the Company,
authorizing the execution of said supplemental indenture,
(c) an Opinion of Counsel, stating that said supplemental indenture
complies with, and that the execution thereof is authorized or permitted
by, the provisions of this Indenture, and
(d) if said supplemental indenture shall be executed pursuant to
Section 13.02, evidence (as provided in Article Seven) of the consent
thereto of the Securityholders required to consent thereto as in Section
13.02 provided,
the Trustee shall join with the Company in the execution of said supplemental
indenture unless said supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion but shall not be obligated to, enter into said
supplemental indenture.
SECTION 13.04. Upon the execution of any supplemental indenture pursuant
to the provisions of this Article Thirteen, this Indenture shall be and be
deemed to be modified and amended in accordance therewith
35
<PAGE> 42
and, except as herein otherwise expressly provided, the respective rights,
limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the holders of all of the Securities or of the
Securities of any series affected, as the case may be, shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 13.05. Securities authenticated and delivered after the execution
of any supplemental indenture pursuant to the provisions of this Article
Thirteen may bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company or the Trustee shall
so determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Board of Directors of the Company, to any modification of this
Indenture contained in any such supplemental indenture may be prepared by the
Company, authenticated by the Trustee and delivered in exchange for the
securities then outstanding in equal aggregate principal amounts, and such
exchange shall be made without cost to the holders of the Securities.
SECTION 13.06. Every supplemental indenture executed pursuant to the
provisions of this Article Thirteen shall conform to the requirements of the
Trust Indenture Act of 1939 as then in effect.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 14.01. Subject to the provisions of Section 5.06, nothing
contained in this Indenture or in the Securities shall be deemed to prevent the
consolidation or merger of the Company with or into any other corporation, or
the merger into the Company of any other corporation, or the sale or lease by
the Company of its property and assets as, or substantially as, an entirety, or
otherwise.
Upon any consolidation or merger, or any sale other than for cash or lease
of all or substantially all of the assets of the Company in accordance with the
provisions of Section 5.06, the corporation formed by such consolidation or into
which the Company shall have been merged or to which such sale or lease shall
have been made shall succeed to and be substituted for the Company with the same
effect as if it had been named herein as a party hereto, and thereafter from
time to time such corporation may exercise each and every right and power of the
Company under this Indenture, in the name of the Company or in its own name; and
any act or proceeding by any provision of this Indenture required or permitted
to be done by the Board of Directors or any officer of the Company may be done
with like force and effect by the like board or officer of any corporation that
shall at the time be the successor of the Company hereunder. In the event of any
such sale or conveyance, but not any such lease, the Company (or any successor
corporation which shall theretofore have become such in the manner described in
Section 5.06) shall be discharged from all obligations and covenants under this
Indenture and the Securities and may thereupon be dissolved and liquidated.
Anything in this Section 14.01 to the contrary notwithstanding, no such
consolidation or merger shall be entered into, and no such conveyance or
transfer shall be made, by the Company with or to another corporation or Person
which has outstanding any obligations secured by a Lien if as a result thereof,
any of the properties of any character owned by the Company immediately prior
thereto would be subject to such Lien, unless simultaneously therewith or prior
thereto effective provision shall be made to secure all of the Securities
equally and ratably with (or prior to) such other secured obligations.
SECTION 14.02. Nothing in this Indenture expressed and nothing that may be
implied from any of the provisions hereof is intended, or shall be construed, to
confer upon, or to give to, any person or corporation other than the parties
hereto and their successors and the holders of the Securities any right, remedy
or claim under or by reason of this Indenture or any covenant, condition,
stipulation, promise or agreement hereof, and all covenants, conditions,
stipulations, promises and agreements in this Indenture contained shall be for
the sole and exclusive benefit of the parties hereto and their successors and of
the holders of the Securities.
36
<PAGE> 43
SECTION 14.03. As evidence of compliance with the conditions precedent
provided for in this Indenture (including any covenants compliance with which
constitutes a condition precedent) which relate to the authentication and
delivery of the Securities, to the satisfaction and discharge of this Indenture
or to any other action to be taken by the Trustee at the request or upon the
application of the Company, the Company will furnish to the Trustee an Officers'
Certificate, stating that such conditions precedent have been complied with and
an Opinion of Counsel stating that in the opinion of such Counsel such
conditions precedent have been complied with. Such Opinion of counsel may be in
the form and contain such assumptions, qualifications and limitations as
customarily appear in legal opinions issued in the jurisdiction in which any
such opinion of counsel is rendered.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include (1) a statement that the
person making such certificate or opinion has read such condition or covenant;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; (3) a statement that, in the opinion of such
person, such examination or investigation as is necessary to enable the
expression of an informed opinion as to whether or not such condition or
covenant has been complied with has been made; and (4) a statement as to whether
or not, in the opinion of such person, such condition or covenant has been
complied with.
Notwithstanding any provision of this Indenture authorizing the Trustee
conclusively to rely upon any certificates or opinions, the Trustee, before
granting any application by the Company or taking or refraining from taking any
other action in reliance thereon, may require any further evidence or make any
further investigation as to the facts or matters stated therein which it may, in
good faith, deem reasonable in the circumstances, and in connection therewith
the Trustee may examine or cause to be examined the pertinent books, records and
premises of the Company or of any Subsidiary; and the Trustee shall, in any such
case, require such further evidence or make such further investigation as may be
requested by the holders of a majority in principal amount of the Securities
then outstanding, provided that, if payment to the Trustee of the costs,
expenses and liabilities likely to be incurred by it in making such
investigation is not reasonably assured to the Trustee by the security afforded
to it by the terms of this Indenture, the Trustee before making such
investigation may require reasonable indemnity against such costs, expenses and
liabilities. Any further evidence which may be requested by the Trustee pursuant
to any of the provisions of this paragraph shall be furnished by the Company at
its own expense; and any cost, expenses and liabilities incurred by the Trustee
pursuant to any of the provisions of this paragraph shall be paid by the
Company, or, if paid by the Trustee, shall be repaid by the Company, upon
demand, with interest at the highest rate borne by the Securities, and, until
such repayment, shall be secured by a lien on any moneys held by the Trustee
hereunder prior to any rights therein of the holders of Securities.
SECTION 14.04. All Securities paid, redeemed, exchanged, surrendered for
registration of transfer or retired pursuant to the sinking fund or otherwise
shall, if surrendered to the Company or to any paying agent, be delivered to the
Trustee for cancellation and shall be cancelled by it or, if surrendered to the
Trustee, shall be cancelled by it, and, except as otherwise provided in Sections
2.04, 2.05, 2.07, 4.02, 4.07 and 13.05, no Securities shall be issued under the
Indenture in lieu thereof The Trustee shall make appropriate notations in its
records in respect of all such Securities and shall destroy such Securities and
deliver a certificate of such destruction to the Company. If the Company shall
acquire any of the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation.
SECTION 14.05. If any provision of this Indenture limits, qualifies or
conflicts with any duties under any required provision of the Trust Indenture
Act imposed hereon by Section 318(c) thereof, such required provision shall
control.
SECTION 14.06. Whenever action is required by this Indenture by the Board
of Directors of the Company and there is at the time constituted a committee of
the Board of Directors duly authorized to take such action, such action by said
committee shall be deemed to be the action of the Board of Directors and shall
be sufficient for all purposes of this Indenture where action by the Board of
Directors is specified.
37
<PAGE> 44
SECTION 14.07. Any notice or demand authorized by this Indenture to be
given to the Company shall be sufficiently given for all purposes, if it shall
be given or made in writing, by hand, telecopier (with confirmation of receipt)
or certified or registered mail (confirmation of receipt requested) to the
Company addressed to it at Dial Tower, Phoenix, Arizona 85077 (telephone: (602)
207-4900; telecopier: (602) 207-5543) to the attention of its General Counsel or
at such other address as may have been furnished in writing to the Trustee by
the Company. Any notice, direction, request or demand to or upon the Trustee
shall be sufficiently given, for all purposes, if it shall be given or made in
writing, by hand, telecopier (with confirmation of receipt) or certified or
registered mail (confirmation of receipt requested) to The Chase Manhattan Bank,
N.A., 4 Chase MetroTech Center, 3rd Floor, Brooklyn, New York 11245 (telephone:
(718) 242-7285; telecopier: (718) 242-5885) to the attention of its Corporate
Trust Office, or at such other address as may have been furnished in writing to
the Company by the Trustee. Any notice required or permitted to be given to
Securityholders shall be sufficiently given if given by first class mail,
postage prepaid, to such holders, at their addresses as the same shall appear on
the Security Register. A failure to give notice with respect to any particular
holder or any defect therein shall not affect the sufficiency of notice given to
any other holder. Notice may be waived in writing by the person entitled to
receive such notice either before or after such event and such waiver shall be
the equivalent of receipt of such notice.
SECTION 14.08. (a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by or pursuant to this Indenture to be
given or taken by holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such holders in person or
by an agent duly appointed in writing. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent, or of the holding by any Person of a Security, shall be sufficient for
any purpose of this Indenture and (subject to Section 315 of the Trust Indenture
Act) conclusive in favor of the Trustee and the Company and any agent of the
Trustee or the Company, if made in the manner provided in this Section.
Without limiting the generality of this Section, unless otherwise provided
in or pursuant to this Indenture, a holder, including a Depositary that is a
holder of a global Security, may make, give or take, by a proxy, or proxies,
duly appointed in writing, any request, demand, authorization, direction,
notice, consent, waiver or other action provided in or pursuant to this
Indenture to be made, given or taken by holders, and a Depositary that is a
holder of a global Security may provide for the beneficial owners of interests
in any such global Security to direct such Depositary in taking such action
through such Depositary's standing instructions and customary practices. The
Depositary shall report only one result of its solicitation of proxies to the
Trustee.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved in any reasonable manner which the Trustee deems
sufficient and in accordance with such reasonable rules as the Trustee may
determine; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(c) The ownership, principal amount and serial numbers of Securities held
by any Person, and the date of the commencement and the date of the termination
of holding the same, shall be proved by the Security Register.
(d) If the Company shall solicit from the holders of any Securities any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company shall, by Board Resolution, fix in advance a record date for the
determination of holders of Securities entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act. Such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the holders of Securities of
record at the close of business on such record date shall be deemed to be
holders for the purpose of determining whether holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as of
such record date; provided that no such authorization,
38
<PAGE> 45
agreement or consent by the holders of Securities shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture
not later than six months after the record date.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the holder of any Security shall bind every future holder of
the same Security and the holder of every Security issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee, any Security Registrar or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
SECTION 14.09. In any case where the date of maturity of interest on or
principal of the Securities or the date fixed for redemption of any Securities
shall not be a business day, then payment of interest, principal and premium, if
any, may be made on the next succeeding business day with the same force and
effect as if made on the date of maturity and no interest shall accrue for the
period after such date.
SECTION 14.10. This Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
SECTION 14.11. This Indenture and each Security shall be deemed to be a
contract made under the law of the State of New York, and for all purposes shall
be construed in accordance with the law of said State.
IN WITNESS WHEREOF, GREYHOUND FINANCIAL CORPORATION has caused this
Indenture to be executed in its corporate name by one of its officers thereunto
duly authorized, and its corporate seal to be hereunto affixed and to be
attested by its Secretary or one of its Assistant Secretaries, and THE CHASE
MANHATTAN BANK, N.A. has caused this Indenture to be executed in its corporate
name by one of its authorized officers thereunto duly authorized, all as of
September 1, 1992.
GREYHOUND FINANCIAL CORPORATION
[Seal]
By: /s/ SAMUEL L. EICHENFIELD
Samuel L. Eichenfield
President & Chief Executive Officer
Attest:
/s/ W. J. HALLINAN
W. J. Hallinan
Secretary
THE CHASE MANHATTAN BANK, N.A.,
as Trustee
[Seal]
By: /s/ C. J. HEINZELMANN
C. J. Heinzelmann
Vice President
At test:
/s/ MARY LEWICKI
Mary Lewicki
Assistant Secretary
39
<PAGE> 1
EXHIBIT 5
GFC Financial Corporation
William J. Hallinan
Vice President
General Counsel & Secretary
602-207-5749
March 25, 1994
United States Securities and Exchange Commission
Office of Application and Report Services
450 Fifth Street, NW
Washington, DC 20549
Dear Ladies and Gentlemen:
In my capacity as counsel for Greyhound Financial Corporation, a Delaware
corporation (the "Company"), I have formed the following opinion in connection
with the registration of the Company's Senior Debt Securities (the "Securities")
on Form S-3. Unless otherwise defined herein, the definition of the terms used
in this opinion shall be the same as those in the registration statement to
which this opinion has been attached as an exhibit (the "Registration
Statement").
I have examined such corporate records and other documents and have made
such examinations of law as I have deemed relevant. Based on the above, and
subject to the qualifications below, it is my opinion that upon:
(a) the due execution and delivery of any supplement or supplements to
the Indenture by the Trustee and the Company;
(b) the taking of appropriate further action by the Company;
(c) the effectiveness of the Registration Statement pursuant to the
Securities Act of 1933, as amended, the Trust Indenture Act of 1939, and
any required filing of the Prospectus pursuant to Rule 424(b) within the
period required by that rule;
(d) the due execution and delivery of the Securities on behalf of the
Company;
(e) the due authentication of the Securities by the Trustee; and
(f) the sale and delivery of the Securities at the price or prices and
in accordance with the terms set forth in the Registration Statement, as it
may be amended from time to time;
the Securities will be duly and validly authorized and when issued will be
legal, valid and binding obligations of the Company in accordance with their
terms, except as such binding nature may be limited by bankruptcy, insolvency,
reorganization, arrangement, moratorium and other similar laws affecting the
rights of creditors generally and by general principles of equity and commercial
reasonableness.
The foregoing opinion relates only to matters of the laws of the State of
Arizona and the General Corporation Law of the State of Delaware, in either case
without reference to conflict of laws, and to the Federal laws of the United
States. I do not express any opinions on laws of any other jurisdiction or
otherwise than as expressly set forth above.
I hereby consent to the use of the foregoing opinion as an exhibit to the
Registration Statement and to the use of my name and title in such Registration
Statement and related Prospectus, under the heading "Legal Matters".
Very truly yours,
/s/ WILLIAM J. HALLINAN
William J. Hallinan
Vice President and General Counsel
dlw
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Greyhound Financial Corporation on Form S-3 of our report dated March 4,
1994, appearing in the Annual Report on Form 10-K of Greyhound Financial
Corporation for the year ended December 31, 1993 and to the reference to us
under the heading "Experts" in the Prospectus, which is part of this
Registration Statement.
DELOITTE & TOUCHE
March 24, 1994
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement
of Greyhound Financial Corporation on Form S-3 (File No. 33- ) of our
report dated February 7, 1994 on our audits of the consolidated financial
statements of TriCon Capital Corporation-Predecessor Business, which report is
included in the Annual Report on Form 10-K of Greyhound Financial Corporation
and includes an explanatory paragraph for certain accounting changes. We also
consent to the reference to our firm under the caption "Experts."
COOPERS & LYBRAND
New York, New York
March 25, 1994
<PAGE> 1
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to incorporation by reference in the registration statement (No.
33- ) on Form S-3 of Greyhound Financial Corporation of our report on Fleet
Factors Corporation (a wholly-owned subsidiary of Fleet Financial Group, Inc.)
dated January 28, 1994, relating to the balance sheets as of November 30, 1993
and December 31, 1992 and the related statements of income, changes in
stockholder's equity, and cash flows for the eleven months ended November 30,
1993 and the year ended December 31, 1992, which report appears in the February
14, 1994 Form 8-K of Greyhound Financial Corporation and to the reference to our
Firm under the heading "Experts" in the prospectus, which is part of the
registration statement.
KPMG Peat Marwick
Providence, Rhode Island
March 25, 1994
<PAGE> 1
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)
------------------------
GREYHOUND FINANCIAL CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
ARIZONA
(STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION)
94-1278569
(I.R.S. EMPLOYER IDENTIFICATION NO.)
DIAL TOWER
DIAL CORPORATE CENTER
PHOENIX, ARIZONA
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
85077
(ZIP CODE)
------------------------
SENIOR DEBT SECURITIES
(TITLE OF THE INDENTURE SECURITIES)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
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.
<TABLE>
<C> <C> <S>
*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 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.
</TABLE>
- ---------------
* 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.
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.
1
<PAGE> 3
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 24th day March, 1994.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By Andrea Koster-Crain
Second Vice President
2
<PAGE> 4
EXHIBIT 7
REPORT OF CONDITION
CONSOLIDATING DOMESTIC AND FOREIGN SUBSIDIARIES OF
THE CHASE MANHATTAN BANK, N.A.
OF NEW YORK IN THE STATE OF NEW YORK, AT THE CLOSE OF BUSINESS ON DECEMBER 31,
1993, PUBLISHED IN RESPONSE TO CALL MADE BY COMPTROLLER OF THE CURRENCY, UNDER
TITLE 12, UNITED STATES CODE, SECTION 161.
CHARTER NUMBER 02370 COMPTROLLER OF THE CURRENCY NORTHEASTERN DISTRICT
STATEMENT OF RESOURCES AND LIABILITIES
<TABLE>
<CAPTION>
THOUSANDS
OF DOLLARS
------------
<S> <C> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin........................... $ 5,778,428
Interest-bearing balances.................................................... 5,431,174
Securities........................................................................ 7,439,029
Federal funds sold and securities purchased under agreements to resell in domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's:
Federal funds sold........................................................... 3,982,649
Securities purchased under agreements to resell.............................. 0
Loans and lease financing receivables:
Loans and leases, net of unearned income......................... $48,856,930
LESS: Allowance for loan and lease losses........................ 1,065,877
LESS: Allocated transfer risk reserve............................ 0
------------
Loans and leases, net of unearned income, allowance, and reserve.................. 47,791,053
Assets held in trading accounts................................................... 6,244,939
Premises and fixed assets (including capitalized leases).......................... 1,617,111
Other real estate owned........................................................... 1,189,024
Investments in unconsolidated subsidiaries and associated companies............... 67,637
Customers' liability to this bank on acceptances outstanding...................... 774,020
Intangible assets................................................................. 354,023
Other assets...................................................................... 3,520,283
------------
TOTAL ASSETS...................................................................... $84,189,415
------------
------------
LIABILITIES
Deposits:
In domestic offices.......................................................... $34,624,513
Noninterest-bearing............................................ $13,739,371
Interest-bearing............................................... 20,885,142
In foreign offices, Edge and Agreement subsidiaries, and IBF's............... 30,660,808
Noninterest-bearing............................................ $ 2,473,222
Interest-bearing............................................... 28,187,586
------------
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 IBF's:
Federal funds purchased...................................................... 2,829,219
Securities sold under agreements to repurchase............................... 140,462
Demand notes issued to the U.S. Treasury.......................................... 25,000
</TABLE>
<PAGE> 5
<TABLE>
<CAPTION>
THOUSANDS
OF DOLLARS
------------
<S> <C> <C>
Other borrowed money.............................................................. 2,618,185
Mortgage indebtedness and obligations under capitalized leases.................... 41,366
Bank's liability on acceptances, executed and outstanding......................... 780,289
Subordinated notes and debentures................................................. 2,360,000
Other liabilities................................................................. 3,697,556
------------
TOTAL LIABILITIES................................................................. $77,777,398
------------
------------
Limited-life preferred stock and related surplus.................................. 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus..................................... 0
Common Stock...................................................................... $ 910,494
Surplus........................................................................... 4,382,506
Undivided profits and capital reserves............................................ 920,258
Net unrealized loss on marketable equity securities............................... 187,683
Cumulative foreign currency translation adjustments............................... 11,076
------------
TOTAL EQUITY CAPITAL.............................................................. 6,412,017
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK, AND
EQUITY CAPITAL............................................................... $84,189,415
------------
------------
</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
