<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 1, 1995
REGISTRATION NO. 33-58317
NO. 33-58317-01
NO. 33-58317-02
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------
<TABLE>
<S> <C> <C>
AMERICAN GENERAL CORPORATION TEXAS 74-0483432
AMERICAN GENERAL DELAWARE, L.L.C. DELAWARE TO BE APPLIED FOR
AMERICAN GENERAL CAPITAL, L.L.C. DELAWARE TO BE APPLIED FOR
(EXACT NAME OF EACH REGISTRANT AS (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
SPECIFIED IN ITS CHARTER) INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
AMERICAN GENERAL CORPORATION AMERICAN GENERAL DELAWARE, L.L.C.
2929 ALLEN PARKWAY AMERICAN GENERAL CAPITAL, L.L.C.
HOUSTON, TEXAS 77019-2155 2590 AMERICAN GENERAL CENTER
(713) 522-1111 NASHVILLE, TENNESSEE 37250
</TABLE>
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF EACH
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------
JON P. NEWTON, ESQ.
AMERICAN GENERAL CORPORATION
2929 ALLEN PARKWAY
HOUSTON, TEXAS 77019-2155
(713) 522-1111
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE FOR EACH REGISTRANT)
PLEASE SEND COPIES OF ALL COMMUNICATIONS TO:
<TABLE>
<S> <C>
SCOTT N. WULFE, ESQ. JOHN H. NEWMAN, ESQ.
VINSON & ELKINS L.L.P. BROWN & WOOD
2300 FIRST CITY TOWER ONE WORLD TRADE CENTER
1001 FANNIN NEW YORK, NEW YORK 10048
HOUSTON, TEXAS 77002 (212) 839-5336
(713) 758-2222
</TABLE>
------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: from time
to time after the effective date of this registration statement, as determined
in light of market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
EXPLANATORY NOTE
This Amendment is being filed for the sole purpose of filing certain
exhibits.
<PAGE> 3
ITEM 16. EXHIBITS
The following exhibits are filed as a part of this Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
-------- -----------
<S> <C>
*1(a) -- Form of Underwriting Agreement (Debt Securities and Warrants to purchase
Debt Securities), including forms of Pricing Agreement and Delayed
Delivery Contract.
*1(b) -- Form of Underwriting Agreement (Common Stock and Warrants to Purchase
Common Stock), including forms of Pricing Agreement and Delayed Delivery
Contract.
*1(c) -- Form of Underwriting Agreement (Preferred Stock and Warrants to Purchase
Preferred Stock), including forms of Pricing Agreement and Delayed
Delivery Contract.
*1(d) -- Form of Underwriting Agreement (Convertible Preferred Securities).
*1(e) -- Form of Underwriting Agreement (Non-Convertible Preferred Securities).
*4(a) -- Form of Senior Indenture, dated as of May , 1995, between the Company
and Chemical Bank, as Trustee. The form or forms of Senior Securities with
respect to each particular offering will be filed as an exhibit to a
Current Report on Form 8-K and incorporated herein by reference.
*4(b) -- Form of Senior Subordinated Indenture, dated as of May , 1995, between
the Company and Chemical Bank, as Trustee. The form or forms of Senior
Subordinated Securities with respect to each particular offering will be
filed as an exhibit to a Current Report on Form 8-K and incorporated
herein by reference.
4(c) -- Form of Junior Subordinated Indenture, dated as of May , 1995, between
the Company and Chemical Bank, as Trustee. Other than as set forth in
Exhibits 4(r) and 4(t) below, the form or forms of Junior Subordinated
Debentures with respect to each particular offering will be filed as an
exhibit to a Current Report on Form 8-K and incorporated herein by
reference.
4(d) -- Restated Articles of Incorporation of the Company (including Statement of
Resolution Establishing Series of Shares of Series A Junior Participating
Preferred Stock) (incorporated by reference to Exhibit 4.1 to Registration
Statement No. 33-33115 of the Company).
4(e) -- Rights Agreement dated as of July 27, 1989 between the Company and Texas
Commerce Bank National Association, as Rights Agent, and First Amendment,
dated as of October 26, 1992 (incorporated by reference to Exhibit 4 to
the Company's Quarterly Report on Form 10-Q for the quarter ended June 30,
1989, and to Exhibit 19 to the Company's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1992, respectively).
4(f) -- Bylaws of the Company (incorporated by reference to Exhibit 3.2 to the
Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1993).
**4(g) -- Form of Debt Warrant Agreement, including form of Debt Warrant
Certificates.
**4(h) -- Form of Preferred Stock Warrant Agreement, including form of Preferred
Stock Warrant Certificates.
**4(i) -- Form of Common Stock Warrant Agreement, including form of Common Stock
Warrant Certificates.
***4(j) -- Certificate of Formation of American General Delaware, L.L.C.
4(k) -- Form of Amended and Restated Limited Liability Company Agreement of
American General Delaware, L.L.C.
4(l) -- Form and terms of American General Delaware, L.L.C. Preferred Securities,
Series A.
***4(m) -- Certificate of Formation of American General Capital, L.L.C.
***4(n) -- Limited Liability Company Agreement of American General Capital, L.L.C.
*4(o) -- Form of Statement of Resolution Establishing Series of Shares of Series A
Cumulative Convertible Preferred Stock of the Company.
4(p) -- Form of Guarantee with respect to Preferred Securities of American General
Delaware, L.L.C.
*4(q) -- Form of Guarantee with respect to Preferred Securities of American General
Capital, L.L.C.
</TABLE>
II-1
<PAGE> 4
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
*4(r) -- Form of Resolutions Establishing the Convertible Junior Subordinated
Debentures, Series A of the Company.
*4(s) -- Form and terms of American General Capital, L.L.C. Preferred Securities,
Series A.
*4(t) -- Form of Resolutions Establishing the Subordinated Debentures, Series A of
the Company.
*5 -- Opinion and Consent of Vinson & Elkins L.L.P.
*8 -- Opinion and Consent of Vinson & Elkins L.L.P. with respect to certain tax
matters.
***12 -- Computation of Ratio of Earnings to Fixed Charges.
*23(a) -- Consent of Vinson & Elkins L.L.P. (contained in their opinions in Exhibits
5 and 8).
***23(b) -- Consent of Ernst & Young LLP, Independent Auditor.
***23(c) -- Consent of Coopers & Lybrand L.L.P., Independent Accountants.
***24 -- Powers of Attorney.
*25 -- Form T-1 Statement of Eligibility of Chemical Bank, as Trustee under the
Senior Indenture, Senior Subordinated Indenture and Junior Subordinated
Indenture.
</TABLE>
- ---------------
* To be filed by Amendment.
** To be filed as an exhibit to a Current Report on Form 8-K and incorporated
herein by reference.
*** Previously filed.
II-2
<PAGE> 5
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AMERICAN
GENERAL 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 OR AMENDMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF HOUSTON, STATE OF TEXAS,
ON MAY 1, 1995.
AMERICAN GENERAL CORPORATION
(Registrant)
By: /s/ AUSTIN P. YOUNG
--------------------------------
Austin P. Young
Senior Vice President and
Chief Financial Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AMERICAN
GENERAL DELAWARE, L.L.C. CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE
THAT IT MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED
THIS REGISTRATION STATEMENT OR AMENDMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF HOUSTON, STATE OF TEXAS,
ON MAY 1, 1995.
AMERICAN GENERAL DELAWARE, L.L.C.
(Registrant)
By: American General Delaware Management
Corporation, as Manager
By: /s/ KENT E. BARRETT
--------------------------------
Kent E. Barrett
Vice President and Treasurer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AMERICAN
GENERAL CAPITAL, L.L.C. CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT
IT MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT OR AMENDMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF HOUSTON, STATE OF TEXAS,
ON MAY 1, 1995.
AMERICAN GENERAL CAPITAL, L.L.C.
(Registrant)
By: American General Delaware Management
Corporation, as Manager
By: /s/ KENT E. BARRETT
--------------------------------
Kent E. Barrett
Vice President and Treasurer
II-3
<PAGE> 6
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT OR AMENDMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN
THE CAPACITIES WITH AMERICAN GENERAL CORPORATION INDICATED ON MAY 1, 1995.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------------------------------------------- ---------------------------------------------
<S> <C>
HAROLD S. HOOK* Chairman of the Board, Chief Executive
- --------------------------------------------- Officer and Director (principal executive
(Harold S. Hook) officer)
/s/ AUSTIN P. YOUNG Senior Vice President and Chief Financial
- --------------------------------------------- Officer (principal financial officer)
(Austin P. Young)
/s/ PAMELA J. PENNY Vice President and Controller (principal
- --------------------------------------------- accounting officer)
(Pamela J. Penny)
J. EVANS ATTWELL* Director
- ---------------------------------------------
(J. Evans Attwell)
BRADY F. CARRUTH* Director
- ---------------------------------------------
(Brady F. Carruth)
W. LIPSCOMB DAVIS, JR.* Director
- ---------------------------------------------
(W. Lipscomb Davis, Jr.)
ROBERT M. DEVLIN* Director
- ---------------------------------------------
(Robert M. Devlin)
LARRY D. HORNER* Director
- ---------------------------------------------
(Larry D. Horner)
RICHARD J.V. JOHNSON* Director
- ---------------------------------------------
(Richard J.V. Johnson)
ROBERT E. SMITTCAMP* Director
- ---------------------------------------------
(Robert E. Smittcamp)
/s/ JAMES R. TUERFF Director
- ---------------------------------------------
(James R. Tuerff)
*By: /s/ JAMES R. TUERFF
- ---------------------------------------------
(James R. Tuerff, Attorney-in-fact)
</TABLE>
II-4
<PAGE> 7
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT OR AMENDMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN
THE CAPACITIES WITH AMERICAN GENERAL DELAWARE MANAGEMENT CORPORATION (AS THE
MANAGER OF EACH OF AMERICAN GENERAL DELAWARE, L.L.C. AND AMERICAN GENERAL
CAPITAL, L.L.C.) INDICATED ON MAY 1, 1995.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------------------------------------------- ---------------------------------------------
<S> <C>
/s/ JAMES S. D'AGOSTINO Chairman and Director (principal executive
- --------------------------------------------- officer)
(James S. D'Agostino)
/s/ LEO LEBOS, JR. President and Director
- ---------------------------------------------
(Leo Lebos, Jr.)
/s/ KENT E. BARRETT Vice President, Treasurer and Director
- --------------------------------------------- (principal financial and accounting officer)
(Kent E. Barrett)
</TABLE>
II-5
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
------- ----------- ------------
<S> <C> <C>
*1(a) -- Form of Underwriting Agreement (Debt Securities and
Warrants to purchase Debt Securities), including forms of
Pricing Agreement and Delayed Delivery Contract.
*1(b) -- Form of Underwriting Agreement (Common Stock and Warrants
to Purchase Common Stock), including forms of Pricing
Agreement and Delayed Delivery Contract.
*1(c) -- Form of Underwriting Agreement (Preferred Stock and
Warrants to Purchase Preferred Stock), including forms of
Pricing Agreement and Delayed Delivery Contract.
*1(d) -- Form of Underwriting Agreement (Convertible Preferred
Securities).
*1(e) -- Form of Underwriting Agreement (Non-Convertible Preferred
Securities).
*4(a) -- Form of Senior Indenture, dated as of May , 1995,
between the Company and Chemical Bank, as Trustee. The
form or forms of Senior Securities with respect to each
particular offering will be filed as an exhibit to a
Current Report on Form 8-K and incorporated herein by
reference.
*4(b) -- Form of Senior Subordinated Indenture, dated as of May
, 1995, between the Company and Chemical Bank, as
Trustee. The form or forms of Senior Subordinated
Securities with respect to each particular offering will
be filed as an exhibit to a Current Report on Form 8-K
and incorporated herein by reference.
4(c) -- Form of Junior Subordinated Indenture, dated as of May
, 1995, between the Company and Chemical Bank, as
Trustee. Other than as set forth in Exhibits 4(r) and
4(t) below, the form or forms of Junior Subordinated
Debentures with respect to each particular offering will
be filed as an exhibit to a Current Report on Form 8-K
and incorporated herein by reference.
4(d) -- Restated Articles of Incorporation of the Company
(including Statement of Resolution Establishing Series of
Shares of Series A Junior Participating Preferred Stock)
(incorporated by reference to Exhibit 4.1 to Registration
Statement No. 33-33115 of the Company).
4(e) -- Rights Agreement dated as of July 27, 1989 between the
Company and Texas Commerce Bank National Association, as
Rights Agent, and First Amendment, dated as of October
26, 1992 (incorporated by reference to Exhibit 4 to the
Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1989, and to Exhibit 19 to the Company's
Quarterly Report on Form 10-Q for the quarter ended
September 30, 1992, respectively).
4(f) -- Bylaws of the Company (incorporated by reference to
Exhibit 3.2 to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1993).
**4(g) -- Form of Debt Warrant Agreement, including form of Debt
Warrant Certificates.
**4(h) -- Form of Preferred Stock Warrant Agreement, including form
of Preferred Stock Warrant Certificates.
</TABLE>
<PAGE> 9
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
------- ----------- ------------
<S> <C> <C>
**4(i) -- Form of Common Stock Warrant Agreement, including form of
Common Stock Warrant Certificates.
***4(j) -- Certificate of Formation of American General Delaware,
L.L.C.
4(k) -- Form of Amended and Restated Limited Liability Company
Agreement of American General Delaware, L.L.C.
4(l) -- Form and terms of American General Delaware, L.L.C.
Preferred Securities, Series A.
***4(m) -- Certificate of Formation of American General Capital,
L.L.C.
***4(n) -- Limited Liability Company Agreement of American General
Capital, L.L.C.
*4(o) -- Form of Statement of Resolution Establishing Series of
Shares of Series A Cumulative Convertible Preferred Stock
of the Company.
4(p) -- Form of Guarantee with respect to Preferred Securities of
American General Delaware, L.L.C.
*4(q) -- Form of Guarantee with respect to Preferred Securities of
American General Capital, L.L.C.
*4(r) -- Form of Resolutions Establishing the Convertible Junior
Subordinated Debentures, Series A of the Company.
*4(s) -- Form and terms of American General Capital, L.L.C.
Preferred Securities, Series A.
*4(t) -- Form of Resolutions Establishing the Subordinated
Debentures, Series A of the Company.
*5 -- Opinion and Consent of Vinson & Elkins L.L.P.
*8 -- Opinion and Consent of Vinson & Elkins L.L.P. with
respect to certain tax matters.
***12 -- Computation of Ratio of Earnings to Fixed Charges.
*23(a) -- Consent of Vinson & Elkins L.L.P. (contained in their
opinions in Exhibits 5 and 8).
***23(b) -- Consent of Ernst & Young LLP, Independent Auditor.
***23(c) -- Consent of Coopers & Lybrand L.L.P., Independent
Accountants.
***24 -- Powers of Attorney.
*25 -- Form T-1 Statement of Eligibility of Chemical Bank, as
Trustee under the Senior Indenture, Senior Subordinated
Indenture and Junior Subordinated Indenture.
</TABLE>
- ---------------
* To be filed by Amendment.
** To be filed as an exhibit to a Current Report on Form 8-K and incorporated
herein by reference.
*** Previously filed.
<PAGE> 1
EXHIBIT 4(c)
================================================================================
AMERICAN GENERAL CORPORATION
TO
CHEMICAL BANK
TRUSTEE
____________________________________
Indenture
____________________________________
DATED AS OF MAY ___, 1995
(JUNIOR SUBORDINATED SECURITIES)
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
</TABLE>
<TABLE>
<S> <C> <C>
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 105. Notices, etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 106. Notice to Holders of Securities; Waiver . . . . . . . . . . . . . . . . . . . . . 16
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 108. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . 16
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 110. Separability and Saving Clause . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 202. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . 18
SECTION 203. Securities in Global Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 302. Currency; Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . 22
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 305. Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . . 25
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . 27
SECTION 307. Payment of Interest; Rights Preserved . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
</TABLE>
<PAGE> 3
ARTICLE FOUR
SATISFACTION AND DISCHARGE
<TABLE>
<S> <C> <C>
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . 31
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . 36
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 505. Trustee May Enforce Claims without Possession
of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 508. Unconditional Right of Holders to Receive
Principal, any Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 512. Control by Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 516. Special Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 604. Not Responsible for Recitals, Issuance of
Securities or for Preferred Securities . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 608. Disqualifications; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . 48
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . 48
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<S> <C> <C>
SECTION 610. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . 48
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 612. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . 51
SECTION 613. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 702. Preservation of Information; Communications to Holders . . . . . . . . . . . . . . 54
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE EIGHT
CONSOLIDATION, MERGER, OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and
Conveyances Permitted Subject to Certain Conditions . . . . . . . . . . . . . . . 55
SECTION 802. Rights and Duties of Successor Corporation . . . . . . . . . . . . . . . . . . . . 56
SECTION 803. Officers' Certificate and Opinion of Counsel . . . . . . . . . . . . . . . . . . . 56
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders . . . . . . . . . . . . . . . . 56
SECTION 902. Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . . . 60
SECTION 903. General Provisions Regarding Supplemental Indentures . . . . . . . . . . . . . . . 61
SECTION 904. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 905. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 906. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 907. Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . 62
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, any Premium and Interest . . . . . . . . . . . . . . . . . . 62
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 1003. Money for Securities Payments to be Held in Trust . . . . . . . . . . . . . . . . 63
SECTION 1004. Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
</TABLE>
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<TABLE>
<S> <C> <C>
SECTION 1005. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 1006. Limitations on Dividends and Certain Other Payments . . . . . . . . . . . . . . . 65
SECTION 1007. Certain Covenants Regarding the American General LLCs . . . . . . . . . . . . . . 66
SECTION 1008. Statement as to Compliance; Certain Notices . . . . . . . . . . . . . . . . . . . 68
SECTION 1009. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1010. Defeasance of Certain Obligations . . . . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1103. Selection by Trustee of Securities to be Redeemed . . . . . . . . . . . . . . . . 71
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1108. Permitted Variations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities . . . . . . . . . . . . . . 74
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . . 75
ARTICLE THIRTEEN
SUBORDINATION
SECTION 1301. Securities Subordinate to Senior Indebtedness. . . . . . . . . . . . . . . . . . . 75
SECTION 1302. Payment of Proceeds Upon Dissolution, Etc . . . . . . . . . . . . . . . . . . . . 75
SECTION 1303. No Payment When Senior Indebtedness in Default . . . . . . . . . . . . . . . . . . 77
SECTION 1304. Payment Permitted If No Default . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 1305. Subrogation To Rights of Holders of Senior Indebtedness . . . . . . . . . . . . . 78
SECTION 1306. Provisions Solely To Define Relative Rights . . . . . . . . . . . . . . . . . . . 78
SECTION 1307. Trustee To Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 1308. No Waiver of Subordination Provisions . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 1309. Trust Moneys Not Subordinated . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 1310. Notice To Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 1311. Reliance On Judicial Order or Certificate of
Liquidating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 1312. Trustee Not Fiduciary For Holders of Senior Indebtedness . . . . . . . . . . . . . 81
</TABLE>
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<TABLE>
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SECTION 1313. Rights of Trustee As Holder of Senior Indebtedness; Preservation Of Trustee . . . . 82
SECTION 1314. Article Applicable To Paying Agents . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 1315. Reliance by Holders of Senior Indebtedness
on Subordination Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 1402. Call, Notice and Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 1403. Persons Entitled to Vote at Meetings . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 1404. Quorum; Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 1405. Determination of Voting Rights; Conduct and
Adjournment of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 1406. Counting Votes and Recording Action of Meetings . . . . . . . . . . . . . . . . . 85
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 1501. No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 1502. Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 1503. Assignment; Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
</TABLE>
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<PAGE> 7
INDENTURE, dated as of May ___, 1995, between AMERICAN GENERAL
CORPORATION, a Texas corporation (hereinafter called the "Company"), having its
principal office at 2929 Allen Parkway, Houston, Texas 77019, and CHEMICAL
BANK, a New York corporation having its principal corporate trust office at 450
West 33rd St., New York, New York 10001, as Trustee (hereinafter called the
"Trustee").
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its
lawful purposes debt securities (hereinafter called the "Securities")
evidencing its unsecured and subordinated indebtedness and has duly authorized
the execution and delivery of this Indenture to provide for the issuance of the
Securities, unlimited as to principal amount, to bear such rates of interest,
if any, to mature at such time or times, to be issued in one or more series and
to have such other provisions as shall be fixed as hereinafter provided.
It is contemplated that the Securities will be issued to evidence the
Company's indebtedness resulting from loans to be made to the Company from the
proceeds of the issuance by American General Capital, L.L.C., a Delaware
limited liability company, and American General Delaware, L.L.C., a Delaware
limited liability company, or either of them, of preferred limited liability
company interests, in one or more series, and from related capital
contributions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act
(as hereinafter defined) and the rules and regulations of the Commission (as
hereinafter defined) promulgated thereunder that are required to be part of
this Indenture and, to the extent applicable, shall be governed by such
provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH
For and in consideration of the premises and the purchase of the
Securities by the Holders (as hereinafter defined) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders
of the Securities or of any series thereof, as follows:
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided in or pursuant to this Indenture or unless the context otherwise
requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as
the singular;
(b) all other terms used herein that are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles in the United States and, except as
otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are
generally accepted in the United States at the date of such
computation;
(d) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision;
(e) a series of Preferred Securities related to a
particular series of Securities means the series of Preferred
Securities the proceeds of the sale of which were loaned to the
Company in exchange for such series of Securities, and the Guarantee
related to such series of Preferred Securities means the Guarantee
pursuant to which the Company has guaranteed, to the extent stated
therein, the payment of dividends and certain other amounts with
respect to such series of Preferred Securities; and
(f) the term "day," unless designated as a "Business
Day," means a calendar day.
"Act," when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Amounts" means any additional amounts payable by
the Company which are designated as an "Additional Amount" in the
Securities of a particular series or by or pursuant to a supplemental
indenture, Board Resolution or other instrument authorizing such
series of Securities.
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<PAGE> 9
"Additional Interest" means (i) interest that shall accrue on
any interest on the Securities of any particular series that is not
paid when due because of an extension of an interest payment period,
which shall accrue at the rate of interest specified in the Securities
of such series, the supplemental indenture, the Board Resolution or
the other instrument authorized by a Board Resolution authorizing such
series of Securities and, unless otherwise specified in such
supplemental indenture, Board Resolution or other instrument, shall
compound monthly, and (ii) the Additional Amounts, if any, payable
with respect to the Securities of any particular series.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes
of this definition, "control," when used with respect to any specified
Person, means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
"American General Capital" means American General Capital,
L.L.C., a Delaware limited liability company, and its successors.
"American General Capital Stock" means American General Common
Stock, American General Preferred Stock, any shares of capital stock
resulting from any reclassification or reclassifications of either of
such classes, and any other class of stock of the Company.
"American General Common Stock" means the Common Stock, par
value $.50 per share, of the Company or any other class of stock
resulting from changes or reclassifications of such Common Stock
consisting solely of changes in par value, or from par value to no par
value, or from no par value to par value. Subject to the
anti-dilution provisions of any convertible Security, however, shares
of American General Common Stock issuable on conversion of a Security
shall include only shares of the class designated as Common Stock of
the Company at the date of the supplemental indenture, Board
Resolution or other instrument authorizing such Security or shares of
any class or classes resulting from any reclassification or
reclassifications thereof and which have no preference in respect of
the payment of dividends or the distribution of assets upon any
voluntary or involuntary liquidation, dissolution or winding-up of the
Company and which are not subject to redemption by the Company,
provided that if at any time there shall be more than one such
resulting class, the shares of each such class then so issuable shall
be substantially in the proportion which the total number of shares of
such class resulting from all such reclassifications bears to the
total number of shares of such classes resulting from all such
reclassifications.
"American General Delaware" means American General Delaware,
L.L.C., a Delaware limited liability company, and its successors.
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"American General LLC" or "American General LLCs" means each
of American General Capital, American General Delaware, or, as
appropriate, American General Capital and American General Delaware,
collectively.
"American General Preferred Stock" means the Preferred Stock,
par value $1.50 per share, of the Company.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 613 to act on behalf of the Trustee to
authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper, in an official
language of the country of publication or in the English language,
customarily published on each Business Day, whether or not published
on Saturdays, Sundays or holidays, and of general circulation in the
place in connection with which the term is used or in the financial
community of such place. Where successive publications are required
to be made in Authorized Newspapers, the successive publications may
be made in the same or in different Authorized Newspapers in the same
city meeting the foregoing requirements and in each case on any
Business Day.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of one or more resolutions
certified by the Secretary or an Assistant Secretary of the Company to
have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, delivered to the
Trustee.
"Business Day" means, except as may otherwise be provided in
the Securities of any particular series, any day other than a
Saturday, Sunday or other day on which banking institutions in The
City of New York are authorized or obligated by law or executive order
to close.
"Capitalized Lease Obligation" of any Person means the
obligation to pay rent or other payment amounts under a lease of (or
other indebtedness arrangements conveying the right to use) real or
personal property of such Person which is required to be classified
and accounted for as a capital lease or a liability on the face of a
balance sheet of such Person in accordance with generally accepted
accounting principles. The stated maturity of such obligation shall
be the date of the last payment of rent or any other amount due under
such lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a penalty.
"Certificate of a Firm of Independent Public Accountants"
means a certificate signed by an independent public accountant or a
firm of independent public accountants
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<PAGE> 11
who may be the independent public accountants regularly retained by
the Company or who may be other independent public accountants. Such
accountant or firm shall be entitled to rely upon an Opinion of
Counsel as to the interpretation of any legal matters relating to such
certificate.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange
Act of 1934, as amended, or, if at any time after the execution of
this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by the
Chairman, Vice Chairman, the President or a Vice President (any
reference to a Vice President of the Company herein shall be deemed to
include any Vice President of the Company whether or not designated by
a number or a word or words added before or after the title "Vice
President"), and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Company, delivered to the
Trustee.
"Corporate Trust Office" means the office of the Trustee in
The City of New York at which, at any particular time, its corporate
trust business shall be principally administered, which office on the
date of execution of this Indenture is located at 450 West 33rd
Street, New York, New York 10001.
"corporation" includes corporations, associations, companies
and business trusts.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" means, with respect to any Security issuable or
issued in the form of one or more global Securities, the Person
designated as Depository by the Company in or pursuant to this
Indenture, which Person must be, to the extent required by applicable
law or regulation, a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and, if so provided with respect to
any Security, any successor to such Person. If at any time there is
more than one such Person, "Depository" shall mean, with respect to
any Securities, the qualifying entity which has been appointed with
respect to such Securities.
"Designated Senior Holder" means, with respect to any Senior
Indebtedness, the Person designated as such in accordance with the
terms of the instrument evidencing
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<PAGE> 12
such Senior Indebtedness or, if no Person is so designated, any
trustee, agent, fiduciary, representative, group or Person authorized
to act on behalf of the holders of such Senior Indebtedness.
"Dollars" or "$" or any similar reference shall mean the coin
or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts, except as
may otherwise be provided in the form of Securities of any particular
series pursuant to the provisions of this Indenture.
"Event of Default" has the meaning specified in Section 501.
"Government Obligations", means securities that are (i) direct
obligations of the United States of America for the payment of which
its full faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality
of the United States of America, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by
the United States of America, which, in either case, are not callable
or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a specific
payment of interest on or principal of or other amount with respect to
any such Government Obligation held by such custodian for the account
of the holder of a depository receipt, provided that (except as
required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of such
Government Obligation or the specific payment of interest on or
principal of or other amount with respect to such Government
Obligation evidenced by such depository receipt.
"Guarantee" means the Guarantee Agreement, dated as of May
___, 1995, executed and delivered by the Company for the benefit of
the holders from time to time of the Preferred Securities of American
General Delaware, or the Guarantee Agreement, dated as of May ____,
1995, executed and delivered by the Company for the benefit of the
holders from time to time of the Preferred Securities of American
General Capital, or, where appropriate, each such Guarantee, in each
case as the same may exist at the time.
"Holder" means the Person in whose name a Security is
registered in the Security Register.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of
Securities established as contemplated by Section 301.
"Interest Payment Date," when used with respect to any
Security, means the Stated Maturity of an installment of interest on
such Security.
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"LLC Agreement" means either the Limited Liability Company
Agreement, dated ______________, 1995, of American General Capital,
the Limited Liability Company Agreement, dated the same date, of
American General Delaware, or, if the context so requires, each of
such Limited Liability Company Agreements, in each case as the same
may exist at the time.
"LLC Common Securities" means common limited liability company
interests in either American General Capital or American General
Delaware, as the context requires.
"Managing Member" means American General Delaware Management
Corporation, a Delaware corporation, in its capacity as the manager of
the American General LLCs, or its successor or successors in such
capacity.
"mandatory sinking fund payment" has the meaning specified in
Section 1201.
"Maturity" when used with respect to any Security, means the
date on which the principal of such Security or an installment of
principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration,
notice of redemption, notice of exercise by a Holder of an option to
elect repayment or otherwise, and includes the Redemption Date and the
date for repayment at the option of such Holder.
"Officers' Certificate" means a certificate signed by the
Chairman, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Company, which certificate complies with the requirements, if
applicable, of Section 314(e) of the Trust Indenture Act and is
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel who is
(except as otherwise expressly provided in this Indenture) an employee
of or counsel for the Company, or other counsel acceptable to the
Trustee, which opinion complies with the requirements, if applicable,
of Section 314(e) of the Trust Indenture Act.
"optional sinking fund payment" has the meaning specified in
Section 1201.
"Outstanding," when used with respect to any Securities,
means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(a) any such Security theretofore canceled by the
Trustee or delivered to the Trustee for cancellation
(including, without limitation, any Security converted or
exchanged pursuant to any conversion or exchange provisions of
such Security);
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<PAGE> 14
(b) any such Security, or portion thereof, for
whose payment or redemption money or Government Obligations in
the necessary amount has been theretofore deposited pursuant
hereto with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for
the Holders of such Securities, provided that, if such
Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(c) any such Security that has been paid pursuant
to Section 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Security in respect of
which there shall have been presented to the Trustee proof
satisfactory to it that such Security is held by a bona fide
purchaser in whose hands such Security is a valid obligation
of the Company;
provided, however, that (i) in determining, during any period in which
any Securities of a series are owned by any Person other than the
Company or any other obligor upon the Securities of a series or any
Affiliate of the Company or such other obligor, whether the Holders
of the requisite principal amount of Outstanding Securities of such
series have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or whether a quorum is present at
a meeting of Holders of Securities held for the purpose of voting on
any such action, Securities of such series owned by the Company or any
other obligor upon the Securities of such series or any Affiliate of
the Company or such other obligor shall be disregarded and deemed not
to be Outstanding, and (ii) in making any such determination under
Section 512, 513, or 601(c)(3) hereof during any period in which the
Company or any such other obligor or any Affiliate of the Company or
such other obligor is the sole Holder of the Securities of such
series, the Securities of such series so owned by the Company, such
other obligor, or an Affiliate of the Company or such other obligor
shall be disregarded and deemed not to be Outstanding, except that if
a Special Trustee shall have been appointed pursuant to Section 516
during such period, then, as provided in such Section 516, the
Securities with regard to which such Special Trustee shall have voting
power shall, for purposes of this definition, be deemed to be owned by
such Special Trustee. In determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver or upon any such determination as
to the presence of a quorum, only Securities which the Trustee knows
to be so owned by the Company, such other obligor or an Affiliate of
the Company or such other obligor in the above circumstances 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
such other obligor.
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<PAGE> 15
"Paying Agent" means the Company or any Person authorized by
the Company to pay the principal of and any premium or interest on any
Security.
"Payment Blockage Period" has the meaning specified in Section
1303.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment," when used with respect to the Securities
of any series, means the place or places where, subject to the
provisions of Section 1002, the principal of, and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306
in exchange for or in lieu of a mutilated, destroyed, lost or stolen
Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"Preferred Securities" means any series of Preferred
Securities, as that term is defined in the LLC Agreements, issued by
American General Delaware or American General Capital.
"Proceeding" has the meaning specified in Section 1302.
"Redemption Date," when used with respect to any Security or
portion thereof to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security or
portion thereof to be redeemed, means the price at which it is to be
redeemed as determined by or pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date, if any,
specified for that purpose as contemplated by Section 301, whether or
not a Business Day.
"Responsible Officer," when used with respect to the Trustee,
means any officer of the Trustee assigned by it to administer
corporate trust matters.
"Security" or "Securities" means any Security or Securities,
as the case may be, authenticated and delivered under this Indenture;
provided, however, that, if at any time
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there is more than one Person acting as Trustee under this Indenture,
"Securities," with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however,
of Securities of any series as to which such Person is not Trustee.
"Securities Payment" has the meaning specified in Section 1302.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" means the principal of and any premium
and interest on, and any other payment due pursuant to, any of the
following, whether outstanding on the date of execution of this
Indenture or thereafter incurred, created or assumed:
(i) all obligations of the Company for money
borrowed;
(ii) all obligations of the Company evidenced by
notes, debentures, bonds or other securities, including,
without limitation, the 13 1/2% Restricted Subordinated Notes
Due 2002 of the Company issued pursuant to an Indenture, dated
as of January 3, 1994, between the Company and Texas Commerce
Bank, National Association and any obligations incurred,
created or assumed in connection with the acquisition of
property, assets or businesses;
(iii) all Capitalized Lease Obligations of the
Company;
(iv) all reimbursement obligations of the Company
with respect to letters of credit, bankers' acceptances or
similar facilities issued for the account of the Company;
(v) all obligations of the Company issued or
assumed as the deferred purchase price of property or services
(but excluding trade accounts payable or accrued liabilities
arising in the ordinary course of business);
(vi) all payment obligations of the Company under
any interest rate, currency or commodity swap agreement,
option agreement, hedge agreement, forward contract, or
similar agreement designed to protect the Company or another
Person against fluctuations in interest rates, exchange rates
or commodity prices;
(vii) all obligations of the type referred to in
clauses (i) through (vi) above of another Person and all
dividends of another Person, the payment of which, in either
case, the Company has assumed or guaranteed, or for which the
Company is responsible or liable, directly or indirectly,
jointly or severally, as obligor, guarantor or otherwise; and
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(viii) all amendments, modifications, renewals,
extensions, refinancings, replacements and refundings by the
Company of any such indebtedness or obligations referred to in
clauses (i) through (vii) above (and of any such amended,
modified, renewed, extended, refinanced, replaced or refunded
indebtedness or obligations);
provided, however, that the following shall not constitute Senior
Indebtedness: (a) any indebtedness, renewal, extension, refunding,
assumption, guarantee or other obligation which provides, or in the
instrument creating, or evidencing the same or the assumption or
guarantee of the same it is expressly provided, that such
indebtedness, renewal, extension, refunding, assumption, guarantee or
other obligation is junior in right of payment to or is pari passu
with the Securities, and (b) each Guarantee. Senior Indebtedness
shall continue to be Senior Indebtedness and entitled to the benefits
of the subordination provisions irrespective of any amendment,
modification or waiver of any term of such Senior Indebtedness.
"Senior NonMonetary Default" has the meaning specified in
Section 1303.
"Senior Payment Default" has the meaning specified in Section
1303.
"Special Event Exchange," when used with respect to the
Securities of any series, means an exchange of such Securities by the
American General LLC that is the Holder thereof for all Preferred
Securities of the related series then outstanding in the circumstance
or upon the occurrence of the event or events specified in the terms
of such Preferred Securities or the Written Action authorizing such
Preferred Securities.
"Special Record Date" for the payment of any Defaulted
Interest on the Securities of any series means a date fixed by the
Trustee pursuant to Section 307.
"Special Trustee" means a special trustee appointed by the
holders of a series of Preferred Securities authorized to enforce an
American General LLC's rights under the Securities of the related
series held by such American General LLC.
"Stated Maturity," when used with respect to any Security or
any installment of principal thereof or interest (including Additional
Interest) thereon, means the fixed date on which the principal of such
Security or such installment of principal or interest is due and
payable, determined as contemplated by Section 301.
"Subsidiary" means any corporation of which at the time of
determination the Company and/or one or more Subsidiaries owns or
controls, directly or indirectly, more than 50% of the outstanding
shares of voting stock.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, and any reference herein to the Trust Indenture Act or a
particular provision thereof shall
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mean such Trust Indenture Act or provision, as the case may be, as
amended or replaced from time to time or as supplemented from time to
time by rules or regulations adopted by the Commission under or in
furtherance of the purposes of such Trust Indenture Act or provision,
as the case may be.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have
become such with respect to one or more series of Securities pursuant
to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall
mean the Trustee with respect to the Securities of that series.
"United States," except as otherwise provided in or pursuant
to this Indenture, means The United States of America (including the
States thereof and the District of Columbia), its territories and
possessions and other areas subject to its jurisdiction.
"Written Action," when used with respect to the Preferred
Securities of any series, means a written action of the Managing
Member of the American General LLC issuing such Preferred Securities
establishing the terms of such series of Preferred Securities pursuant
to the terms of the applicable LLC Agreement.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all
such conditions precedent, if any, have been complied with, provided that in
the case of any such application or request as to which the furnishing of such
documents or either of them is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(a) a statement that each Person signing such certificate
or opinion has read such condition or covenant and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
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(c) a statement that, in the opinion of each such Person,
he or it has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
condition or covenant has been complied with; and
(d) a statement as to whether, in the opinion of each
such Person, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate of counsel or
Opinion of Counsel or representations by counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to matters upon which his certificate or
opinion is based are erroneous. Any such certificate of counsel or Opinion of
Counsel or representations by counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with respect to
such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by or pursuant to
this Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor
signed by such Holders in person or by an agent duly appointed in
writing (including a Special Trustee). Any request, demand,
authorization, direction, notice, consent, waiver or other action
provided by or pursuant to this Indenture to be given or taken by
Holders of Securities of a particular series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of
such series voting in favor thereof, either in person or by proxies
duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held (which, if applicable, shall be in
accordance with the provisions of Article Fourteen), or a combination
of such instruments and any such record. Except as herein otherwise
expressly provided, such
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action shall become effective when such instrument or instruments or
record or both are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments
and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments or so voting at any such
meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and
(subject to Section 601) conclusive in favor of the Trustee and the
Company and any agent of the Trustee or the Company, if made in the
manner provided in this Section.
The record of any meeting of Holders of Securities held
pursuant to Article Fourteen shall be proved in the manner provided in
Section 1406.
Without limiting the generality of this Section 104, unless
otherwise provided in or pursuant to this Indenture, a Holder,
including a Depository that is a Holder of a global Security, may
make, give or take, by a proxy or proxies, duly appointed in writing,
any request, demand, authorization, direction, notice, consent, waiver
or other action provided in or pursuant to this Indenture to be made,
given or taken by Holders, and a Depository that is a Holder of a
global Security may provide its proxy or proxies to the beneficial
owners of interests in any such global Security through such
Depository's standing instructions and customary practices.
The Trustee may fix a record date for the purpose of
determining the Persons who are beneficial owners of interests in any
global Security held by a Depository entitled under the procedures of
such Depository to make, give or take, by a proxy or proxies duly
appointed in writing, any request, demand, authorization, direction,
notice, consent, waiver or other action provided in or pursuant to
this Indenture to be made, given or taken by Holders. If such a
record date is fixed, the Holders on such record date or their duly
appointed proxy or proxies, and only such Persons, shall be entitled
to make, give or take such request, demand, authorization, direction,
notice, consent, waiver or other action, whether or not such Holders
remain Holders after such record date. No such request, demand,
authorization, direction, notice, consent, waiver or other action
shall be valid or effective if made, given or taken more than 90 days
after such record date.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument
or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
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(c) The ownership of Securities and the principal amount
and serial numbers of Securities held by any Person, and the date 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 action, the Company may, at its option, 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 action, but
the Company shall have no obligation to do so. If such a record date
is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other action may be given before or after such
record date, but only the Holders of Securities of record at the close
of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or
other action, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization,
agreement or consent by the Holders of Securities on such record date
shall be deemed effective unless it shall become effective pursuant to
the provisions of this Indenture not later than six months after the
record date.
(e) Any request, demand, authorization, direction,
notice, consent, waiver or other action of the Holder of any Security
shall bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee, any Security Registrar,
any Paying Agent, any Authenticating Agent or the Company in reliance
thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trustee Administration Department, or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, by United States
first-class mail, postage prepaid, to the Company addressed to the
attention of its Treasurer at the address of its principal office
specified in the first
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paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided in or pursuant to the
provisions of this Indenture, where this Indenture provides for notice to
Holders of Securities of any event, such notice shall be sufficiently given to
Holders of Securities if in writing and mailed by United States first-class
mail, postage prepaid, to each Holder of a Security affected by such event, at
his address as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice.
In any case where notice to Holders of Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder of a Security shall affect the sufficiency of
such notice with respect to other Holders of Securities. Any notice that is
mailed in the manner herein provided shall be conclusively presumed to have
been duly given or provided. In case by reason of the suspension of regular
mail service or by reason of any other cause it shall be impracticable to give
such notice to Holders of Securities by mail, then such notification as shall
be made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required to be a part of and
govern this Indenture, such required provision shall control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not, and all rights of
the Company hereunder shall inure to the benefit of such successors and
assigns.
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SECTION 110. SEPARABILITY AND SAVING CLAUSE.
In case any provision in this Indenture or in any Security shall be
invalid, illegal or unenforceable, either wholly or partially, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
No provision of this Indenture or of any Security shall require the
payment or permit the collection of interest (including any Additional
Interest) in excess of the maximum which is not prohibited by law. If any such
excess interest is provided for herein or in any Security, which shall be
adjudicated to be so provided for, then the Company shall not be obligated to
pay such interest in excess of the maximum not prohibited by law.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in any Security, express or implied,
shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent, any Authenticating Agent and their respective
successors and assigns hereunder, the Holders of Securities, and, to the
extent, but only to the extent, provided in Section 1503, the holders of Senior
Indebtedness or Preferred Securities, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities, including the validity thereof,
shall be governed by and construed in accordance with the laws of the State of
New York.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date, date for
repayment, Maturity or Stated Maturity of any Security shall not be a Business
Day, then (notwithstanding any other provision of this Indenture or the
Securities other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu of this Section)
any such payment of principal, any premium or interest (including any
Additional Interest) need not be made on such date, but may be made on the next
succeeding Business Day, except that if such Business Day is in the next
succeeding calendar year, such payment will be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the Interest Payment Date, Redemption Date, date for repayment, Maturity or
Stated Maturity, and no interest shall accrue on any amount so payable for the
period from and after such Interest Payment Date, Redemption Date, date for
repayment, Maturity or Stated Maturity, as the case may be, to such next
succeeding Business Day.
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ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS OF SECURITIES.
The Securities of each series shall be in such form or forms
(including global form) as shall be established in one or more indentures
supplemental hereto or by or pursuant to a Board Resolution in accordance with
Section 301, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by or pursuant
to this Indenture or any indenture supplemental hereto and may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements placed thereon as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange or as may consistently herewith be determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
If the forms of Securities of any series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The Securities of each series shall be issuable in registered form
without coupons.
The definitive Securities shall be typewritten, printed, lithographed
or engraved or produced by any combination of these methods or may be produced
in any other manner, all as determined by the officers of the Company executing
such Securities, as evidenced by their execution of such Securities.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 613, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
________________________________________
, as Trustee
By ____________________________________
Authorized Officer
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SECTION 203. SECURITIES IN GLOBAL FORM.
Unless otherwise provided in or pursuant to this Indenture, the
Securities shall not be issuable in global form. If Securities of a series
shall be issuable in global form, any such Security may provide that it or any
number of such Securities shall represent the aggregate amount of all
Outstanding Securities of such series (or such lesser amount as is permitted by
the terms thereof) from time to time endorsed thereon and may also provide that
the aggregate amount of Outstanding Securities represented thereby may from
time to time be increased or reduced to reflect exchanges. Any endorsement of
any Security in global form to reflect the amount, or any increase or decrease
in the amount, or changes in the rights of Holders, of Outstanding Securities
represented thereby shall be made in such manner and by such Person or Persons
as shall be specified therein or in the Company Order to be delivered pursuant
to Section 303 or 304 with respect thereto. Subject to the provisions of
Section 303, the Trustee shall deliver and redeliver any Security in global
form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 303 has been, or simultaneously is, delivered, any
instructions by the Company with respect to a Security in global form shall be
in writing but need not be accompanied by or contained in an Officers'
Certificate and need not be accompanied by an Opinion of Counsel.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. The terms of the
Securities in addition to or in lieu of those set forth in this Indenture shall
be determined or established in any one or more of the following ways: (1) in
one or more indentures supplemental hereto; (2) in one or more Board
Resolutions (in which case such Board Resolutions shall be included in or
attached to an Officers' Certificate setting forth such terms); or (3) in a
manner specified in or authorized by one or more Board Resolutions (in which
case such Board Resolutions and any administrative procedures relating to the
manner in which the terms of Securities are to be determined or established
shall be included in or attached to an Officers' Certificate setting forth the
manner in which such terms are to be determined or established). The terms to
be so determined or established shall include:
(a) the title of the Securities and the series in which
such Securities shall be included;
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(b) any limit upon the aggregate principal amount
of the Securities of such series which may be authenticated
and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities of such
series pursuant to Section 304, 305, 306, 907 or 1107);
(c) the date or dates on which the principal of
such Securities is payable, or the manner in which such date
or dates is to be determined, and the terms and conditions, if
any, upon which the Company may re-borrow the proceeds from
such a payment or exchange such Securities for new Securities
or other securities on any such payment date or dates;
(d) the rate or rates at which such Securities
shall bear interest, if any, or the manner in which such rate
or rates shall be determined, the date or dates from which
such interest shall accrue or the manner in which such date or
dates shall be determined, the Interest Payment Dates on which
any such interest shall be payable, or the manner in which
such Interest Payment Dates shall be determined, the Regular
Record Dates for any interest payable on such Interest Payment
Dates, and the basis upon which interest shall be calculated
if other than that of a 360-day year consisting of twelve
30-day months;
(e) the right, if any, of the Company to extend
the interest payment periods of such Securities, the maximum
duration, if any, of any such extension or extensions, the
Additional Interest, if any, payable on such Securities if any
interest payment period is extended and any notice (which
shall include the Trustee) which must be given upon the
exercise of such rights;
(f) the Place of Payment for such Securities, if
any, other than or in addition to The City of New York, and
the place or places where any such Securities may be
surrendered for registration of transfer or exchange or for
conversion or exchange and any notices and demands to or upon
the Company in respect of such Securities and this Indenture
may be served;
(g) whether such Securities are to be redeemable
at the option of the Company and, if so, the date or dates on
which, the period or periods within which, the price or prices
at which and the terms and conditions upon which such
Securities may be redeemed, in whole or in part, at the option
of the Company;
(h) the obligation, if any, of the Company to
redeem or repay such Securities pursuant to any sinking fund
or analogous provisions or to repay such Securities at the
option of a Holder thereof or upon the occurrence of one or
more specified events and, if so, the date or dates on which,
the period or periods within which (or the event or events
upon which), the price or prices at which and the other terms
and conditions upon which such Securities shall be
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redeemed or repaid, in whole or in part, pursuant to such
obligation, and any provisions for the remarketing of such
Securities so redeemed or repaid;
(i) the terms and conditions, if any, upon which
such Securities may be convertible into or exchanged for
American General Common Stock, American General Preferred
Stock or other securities of any kind, including the initial
conversion or exchange price or rate, the conversion or
exchange period, the circumstances under which any such
conversion or exchange right may expire, and any other
provision in addition to or in lieu of those set forth in this
Indenture;
(j) the denominations in which any such
Securities shall be issuable if other than denominations of
$_____ and any integral multiple thereof;
(k) whether the amount of payments of principal
of and any premium or interest (including Additional Interest)
on such Securities may be determined with reference to an
index, formula or other method or methods (which index,
formula or method or methods may be based, without limitation,
on one or more currencies, commodities, equity indices or
other indices) and, if so, the terms and conditions upon which
and the manner in which such amounts shall be determined and
paid or payable;
(l) any deletions from, modifications of or
additions to the Events of Default or covenants of the Company
with respect to such Securities, whether or not such Events of
Default or covenants are consistent with the Events of Default
or covenants set forth herein, any change in the right of the
Trustee or Holders to declare the principal of, and any
premium and interest on, such Securities due and payable, and
any additions to the definitions currently set forth in this
Indenture;
(m) the form or forms of such Securities;
(n) whether any such Securities are to be
issuable in global form, and, if so, (i) when any of such
Securities are to be issued in global form, (ii) whether
beneficial owners of interests in any such global Security may
exchange such interests for certificated Securities of such
series and of like tenor of any authorized denomination and
the circumstances under which any such exchange may occur, if
other than in the manner provided in Section 305, (iii) the
name of the Depository with respect to any global Security,
and (iv) the form of any legend or legends to be borne by any
such global Security in addition to or in lieu of the legend
referred to in Section 303;
(o) if there is more than one Trustee, the
identity of the Trustee and, if not the Trustee, the identity
of each Security Registrar, Paying Agent and Authenticating
Agent with respect to such Securities;
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(p) the applicability, if any, of Section 1010 to
the Securities of such series and any provisions in
modification of, in addition to or in lieu of any of the
provisions of Section 1010;
(q) whether and under what circumstances
Additional Amounts on such Securities or any of them shall be
payable and, if so, whether the Company has the option to
redeem such Securities rather than pay such Additional
Amounts;
(r) any restriction or condition on the
transferability of such Securities; and
(s) any other terms of such Securities (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 the date or dates from which interest, if any, shall accrue and
denomination and except as may otherwise be provided in the terms of such
Securities determined or established as provided above. All Securities of any
one series need not be issued at the same time and, unless otherwise provided,
a series may be reopened for issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established by
action that is taken both pursuant to a Board Resolution and at or prior to the
delivery of the Officers' Certificate setting forth the terms of such series of
Securities or the manner in which such terms are to be determined or
established, then a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of such series or the manner in which such
terms are to be determined or established.
SECTION 302. CURRENCY; DENOMINATIONS.
The principal of, premium, if any, and interest (including Additional
Interest) on the Securities shall be payable in Dollars. Unless otherwise
provided as contemplated by Section 301 with respect to any series of
Securities, any Securities of a series shall be issuable in denominations of
$_______ and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman, its Vice Chairman, its President or one of its Vice Presidents, under
its corporate seal reproduced thereon attested by its Treasurer or Secretary or
one of its Assistant Treasurers or Assistant Secretaries. The signature of any
of these officers on the Securities may be manual or facsimile.
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Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices on the date(s) such Securities were issued.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, together with the Board
Resolution and Officers' Certificate or supplemental indenture or other
instrument with respect to such Securities referred to in Sections 201 and 301
and a Company Order for the authentication and delivery of such Securities, and
the Trustee, in accordance with the Company Order and subject to the provisions
hereof, shall authenticate and deliver such Securities. If all the Securities
of any series are not to be issued at one time and if the Board Resolution or
supplemental indenture establishing such series shall so permit, such Company
Order may set forth procedures acceptable to the Trustee for the issuance of
such Securities and determining the terms of particular Securities of such
series, such as interest rate, maturity date, date of issuance and date from
which interest shall accrue. In authenticating Securities hereunder, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon,
(1) an Opinion of Counsel stating substantially to the
effect that,
(a) the form and terms of such Securities, or the
manner of determining such terms, have been established in
conformity with the provisions of this Indenture; and
(b) such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, moratorium, fraudulent
conveyance or other laws relating to or affecting the
enforcement of creditors' rights and by general equity
principles;
(2) an Officers' Certificate stating, to the best
knowledge of each signer of such certificate, that no event which is,
or after notice or lapse of time would become, an Event of Default
with respect to any of the Securities shall have occurred and be
continuing; and
(3) a copy of the LLC Agreement and Written Action of the
American General LLC issuing the series of Preferred Securities
related to such Securities, certified by the Secretary or Assistant
Secretary of the Company or by the Manager Member of such American
General LLC to be a true and correct copy thereof and in full force
and effect.
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The Trustee shall not be required to authenticate or to cause an Authenticating
Agent to authenticate such Securities if the issuance of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
that is not reasonably acceptable to the Trustee.
If all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Opinion of Counsel and Officers'
Certificate at the time of issuance of each such Security, but such opinion and
certificate shall be delivered at or before the time of issuance of the first
Security of such series to be issued.
If the Company shall establish pursuant to Section 301 that the
Securities of a series are to be issued in whole or in part in the form of one
or more global Securities, the Company shall execute and the Trustee shall, in
accordance with this Section and the Company Order with respect to such series,
authenticate and deliver one or more global Securities that (i) shall represent
and shall be denominated in an amount equal to the aggregate principal amount
of the Outstanding Securities of such series to be represented by such global
Security or Securities, (ii) shall be registered in the name of the Depository
for such global Security or Securities or the nominee of such Depository, (iii)
shall be delivered by the Trustee to such Depository or pursuant to such
Depository's instruction and (iv) shall bear a legend substantially to the
following effect (or to such other effect as may be specified in the document
authorizing such a series of Securities or as the Depository, the Trustee and
the Company may agree):
"Unless this Security is presented by an authorized
representative of The Depository Trust Company (the "Depository") (55
Water Street, New York, New York) to the issuer hereof or its agent
for registration of transfer, exchange or payment, and any security
issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of the Depository and any
payment is made to Cede & Co., any transfer, pledge or other use
hereof for value or otherwise by or to any person is wrongful since
the registered owner hereof, Cede & Co., has an interest herein.
Unless and until it is exchanged in whole or in part for
Securities in certificated form, this Security may not be transferred
except as a whole by the Depository to a nominee of the Depository or
by a nominee of the Depository to the Depository or another nominee of
the Depository or by the Depository or any such nominee to a successor
Depository or a nominee of such successor Depository".
Unless otherwise provided in the form of Security, each Security shall
be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for in Section
202 or 613 executed by or on behalf of the Trustee or an Authenticating Agent
by the manual signature of one of its authorized officers.
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Such an executed certificate of authentication upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute and deliver to the Trustee, and upon Company Order the
Trustee shall authenticate and deliver, in the manner provided in Section 303,
temporary Securities of such series which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu
of which they are issued, in registered form and with such appropriate
insertions, omissions, substitutions and other variations as the officers of
the Company executing such Securities may determine, as evidenced by their
execution of such Securities. Such temporary Securities may be in global form.
If temporary Securities of any series are issued, the Company shall
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of such definitive Securities, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series containing identical terms and provisions upon surrender of the
temporary Securities of such series at the office or agency of the Company
maintained for such purpose pursuant to Section 1002, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like aggregate principal amount
of definitive Securities of authorized denominations of the same series
containing identical terms and provisions. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at an office or agency of the
Company maintained pursuant to Section 1002 a register (each such register
being herein sometimes referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of the Securities of each series and of transfers
of the Securities of each series. Such office or agency shall be the "Security
Registrar" for the Securities, if any, of each series of Securities. In the
event that the Trustee shall not be the Security Registrar with respect to a
particular series of Securities, it shall have the right to examine the
Security Register for such series at all reasonable times. Unless and until a
successor Security Registrar is approved by a Board Resolution, Chemical Bank
shall serve as the Security Registrar for each series of Securities.
Upon surrender for registration of transfer of any Security of any
series at any office or agency of the Company maintained for that series
pursuant to Section 1002, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated
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transferee or transferees, one or more new Securities of the same series, of
any authorized denominations and of a like aggregate principal amount, bearing
a number not contemporaneously outstanding, and containing identical terms and
provisions.
At the option of the Holder, Securities of any series (except a global
Security representing all or a portion of such series) may be exchanged for
other Securities of the same series, of any authorized denominations and of a
like aggregate principal amount, containing identical terms and provisions,
upon surrender of the Securities to be exchanged at any such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities that
the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in or
pursuant to this Indenture, any global Security shall be exchangeable for
certificated Securities only if (i) the Depository is at any time unwilling,
unable or ineligible to continue as Depository and a successor depository is
not appointed by the Company within 90 days of the date the Company is so
informed in writing, (ii) the Company executes and delivers to the Trustee a
Company Order to the effect that such global Security shall be so exchangeable,
or (iii) an Event of Default has occurred and is continuing with respect to the
Securities of the same series. If the beneficial owners of interests in a
global Security are entitled to exchange such interests for certificated
Securities of such series, then without unnecessary delay but in any event not
later than the earliest date on which such interests may be so exchanged, the
Company shall deliver to the Trustee certificated Securities in such form and
denominations as are required by or pursuant to this Indenture, and of the same
series as, containing identical terms as and in aggregate principal amount
equal to the principal amount of, such global Security, executed by the
Company. On or after the earliest date on which such interests may be so
exchanged, such global Security shall be surrendered from time to time by the
Depository to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or in part, for certificated Securities as described above,
without charge, in accordance with instructions (which instructions shall be in
writing but need not be contained in or accompanied by an Officers' Certificate
or be accompanied by an Opinion of Counsel) given by the Company to the Trustee
and such Depository. The Trustee shall authenticate and make available for
delivery, in exchange for each portion of such surrendered global Security, a
like aggregate principal amount of certificated Securities of the same series
of authorized denominations and of like tenor as the portion of such global
Security to be exchanged; provided, however, that no such exchanges may occur
during a period beginning at the opening of business 15 days before any
selection of Securities for redemption of the same series and containing
identical terms and ending on the relevant Redemption Date. Promptly following
any such exchange in part, such global Security shall be returned by the
Trustee to the Depository, in accordance with the instructions of the Company
referred to above, with an endorsement thereon to reflect the decrease in the
aggregate amount of Outstanding Securities represented thereby. If a Security
is issued in exchange for any portion of a global Security after the close of
business at the office or agency for such Security where such exchange occurs
on or after (i) any Regular Record Date for such Security and before the
opening of business at such office or agency on the next Interest Payment Date,
or (ii) any Special Record Date for such Security and before
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the opening of business at such office or agency on the related proposed date
for payment of interest or Defaulted Interest, as the case may be, interest
shall not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of such Security, but shall be payable
on such Interest Payment Date or proposed date for payment, as the case may be,
only to the Person to whom interest in respect of such portion of such global
Security shall be payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitling the Holders thereof to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of transfer
or for exchange or redemption shall (if so required by the Company or the
Security Registrar) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar
therefor duly executed, by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 907 or 1107 not
involving any transfer.
Except as otherwise provided in or pursuant to this Indenture, the
Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the selection for redemption of Securities
of like tenor and the same series under Section 1103 or Article Twelve and
ending at the close of business on the day of the mailing of the relevant
notice of redemption, (ii) to register the transfer of or exchange any Security
so selected for redemption in whole or in part, except, in the case of any
Security to be redeemed in part, the portion thereof not to be redeemed or
(iii) to issue, register the transfer of or exchange any Security which, in
accordance with its terms, has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and principal amount, containing
identical terms and provisions and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security, and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless,
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then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall execute and upon
its request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same series and
principal amount, containing identical terms and provisions and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; RIGHTS PRESERVED.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, interest (including
Additional Interest) on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name such Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest. If a series of Securities is convertible into shares of American
General Common Stock, then, unless otherwise specified with respect to such
Securities in accordance with the provisions of Section 301, interest on such
Interest Payment Date shall be payable to each Holder on the related Regular
Record Date notwithstanding the conversion of any such Security between such
Regular Record Date and such Interest Payment Date.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, any interest (including any
Additional Interest) with respect to any Security of any series which is
payable, but is not punctually paid or duly provided for (other than by reason
of an extension of an interest payment period), on any Interest Payment Date
for such Security (herein called "Defaulted Interest") shall forthwith cease to
be payable to the Holder thereof on the relevant Regular Record Date by virtue
of having been such
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Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in subsection (a) or (b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities
affected (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such Security and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when so
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this subsection provided. Thereupon,
the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, United
States first-class postage prepaid, to each Holder of such Securities
(or their respective Predecessor Securities) at the address of such
Holder as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company, cause a
similar notice to be published at least once in an Authorized
Newspaper of general circulation in The City of New York, but such
publication shall not be a condition precedent to the establishment of
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names such Securities (or their respective
Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to
the following subsection (b).
(b) The Company may make payment of any Defaulted
Interest on such Securities in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this subsection (b), such manner
of payment shall be deemed practicable by the Trustee.
At the option of the Company, interest on Securities of any series
that bear interest may be paid by mailing a check to the address of the Person
entitled thereto as such address shall appear in the Security Register or by
transfer to an account maintained by the payee with a bank located in the
United States or by any other means permitted in the form of Securities of any
particular series pursuant to the provisions of this Indenture.
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Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered in the Security Register
as the owner and Holder of such Security for the purpose of receiving payment
of the principal of and any premium and (subject to Sections 305 and 307)
interest (including Additional Interest) on such Security and for all other
purposes whatsoever, whether or not any payment with respect to such Security
shall be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
No owner of a beneficial interest in any global Security held on its
behalf by a Depository shall have any rights under this Indenture with respect
to such global Security, and such Depository may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the owner and Holder of
such global Security for all purposes whatsoever. None of the Company, the
Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, conversion,
exchange or registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee, and any such Securities, as well as
Securities surrendered directly to the Trustee for any such purpose, shall be
promptly canceled by the Trustee. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by or pursuant to this
Indenture. All canceled Securities held by the Trustee shall be disposed of in
accordance with its customary practices, subject to applicable law.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year
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consisting of twelve 30-day months and, for any period shorter than a full
monthly interest payment period, shall be computed on the basis of the actual
number of days elapsed in such period.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further
effect with respect to any series of Securities specified in such Company
Request (except as to (i) any right to convert or exchange Securities of such
series for another security provided for in the supplemental indenture, Board
Resolution or other instrument authorizing such series of Securities, (ii) any
surviving right of registration of transfer or exchange of Securities of such
series expressly provided for herein, (iii) any right to receive payments of
the principal of, premium, if any, and interest (including Additional Interest)
on the Securities of such series from the funds described below, and (iv) any
right to receive Additional Amounts with respect to such series as provided in
the next to last paragraph of this Section 401), and the Trustee, on demand of
and at the expense of the Company, shall execute such instruments as may be
requested by the Company acknowledging satisfaction and discharge of this
Indenture with respect to such series, when
(a) either
(1) all Securities of such series theretofore
authenticated and delivered (other than Securities of such
series that have been destroyed, lost or stolen and that have
been replaced or paid as provided in Section 306, and
Securities of such series for whose payment money has
theretofore been deposited in trust or segregated and held in
trust and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been delivered
to the Trustee for cancellation; or
(2) all Securities of such series not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company,
are to be called for redemption within one
year under arrangements satisfactory to the
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Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
and the Company has irrevocably deposited or caused to be
irrevocably deposited (except as provided in Section 402(c))
with the Trustee, as trust funds and/or obligations in trust,
specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of the Securities of such series,
(A) money in an amount, or (B) Government Obligations which
through the payment of interest and principal in respect
thereof in accordance with their terms, without consideration
of any reinvestment thereof, will provide not later than the
opening of business on the due dates of any payment of the
principal, premium, if any, and interest (including any
Additional Interest) with respect thereto money in an amount
or (C) a combination thereof, sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, including the
principal of, premium, if any, and interest (including any
Additional Interest) on, such Securities to the date of such
deposit (in the case of Securities of such series which have
become due and payable) or to the Stated Maturity or Maturity
thereof, as the case may be;
(b) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(c) the Company has delivered to the Trustee a
Certificate of a Firm of Independent Public Accountants certifying as
to the sufficiency of the amounts deposited pursuant to paragraph (2)
of subsection (a) of this Section for payment of the principal,
premium, if any, and interest (including any Additional Interest) with
respect to the Securities of such series on the dates such payments
are due, and an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture as to such series of
Securities have been complied with.
If there are Securities of two or more series hereunder and if a
different Trustee has been appointed with respect to one or more of such
series, then each Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture if requested to do
so only with respect to Securities of the series as to which it is Trustee and
if the other conditions thereto are met.
If, subsequent to the date a discharge is effected pursuant to this
Section 401, Additional Amounts in excess of those established as of the date
such discharge is effected become payable in respect of the series of
Securities discharged, in order to preserve the benefits of the discharge
established hereunder, the Company shall irrevocably deposit or cause to be
irrevocably deposited in accordance with the provisions of this Section 401,
within ten Business Days prior to the date the first payment in respect of any
portion of such excess Additional Amounts becomes due, such additional funds as
are necessary to satisfy the provisions of this Section 401 as if a discharge
were being effected as of the date of such
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subsequent deposit. Failure to comply with the requirements of this paragraph
shall result in the termination of the benefits of the discharge established by
this Section 401.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to a series of Securities, the obligations with respect to the right of
registration of transfer or exchange of Securities of such series provided for
herein, the obligations of the Company under the preceding paragraph, the
obligations with respect to any conversion or exchange of Securities of such
series provided in the supplemental indenture, Board Resolution or other
instrument authorizing such series of Securities, the obligations of the
Company to the Trustee under Section 607 and, if money and/or Government
Obligations shall have been irrevocably deposited with the Trustee pursuant to
paragraph (2) of subsection (a) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
(a) Subject to the provisions of the last paragraph of
Section 1003, all money and/or Government Obligations deposited with
the Trustee pursuant to Section 401 or Section 1010 or pursuant to a
supplemental indenture entered into pursuant to Section 901(i), and
all money received by the Trustee in respect of any such Government
Obligations, shall be held in trust and applied by it, in accordance
with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine,
to the Persons entitled thereto, of the principal, premium, if any,
and interest (including any Additional Interest) for whose payment
such money has or Government Obligations have been deposited with or
received by the Trustee or to make mandatory sinking fund payments or
analogous payments as contemplated by Section 401, or Section 1010 or
any such supplemental indenture; but such money and Government
Obligations need not be segregated from other funds of the Trustee
except to the extent required by law.
(b) The Company shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against
Government Obligations deposited pursuant to Section 401 or Section
1010 or pursuant to a supplemental indenture entered into pursuant to
Section 901(i) or the interest and principal received in respect of
such obligations other than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from
time to time upon Company Request any Government Obligations or money
held by it as provided in Section 401 or Section 1010 or in any
supplemental indenture entered into pursuant to Section 901(i) which,
as expressed in a Certificate of a Firm of Independent Public
Accountants delivered to the Trustee, are then in excess of the amount
thereof which then would have been required to be deposited for the
purpose for which such obligations or money were deposited or
received.
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ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to Securities of
any series (unless otherwise specified with respect to such series of
Securities in the supplemental indenture, Board Resolution or other instrument
authorizing such series of Securities), means any one of the following events
which has occurred and is continuing (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to the provisions of Article Thirteen or any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) default in the payment of any installment of interest
(including any Additional Interest) upon any of the Securities of that
series, as and when the same shall become due and payable, and
continuance of such default for a period of 10 days; provided that (i)
a valid extension of an interest payment period by the Company
pursuant to the supplemental indenture, Board Resolution or other
instrument authorizing such series of Securities shall not constitute
a default in the payment of interest for this purpose and (ii) no such
default shall be deemed to exist if, on or prior to the date on which
such interest became due, the Company shall have made a payment
sufficient to pay such interest pursuant to the Guarantee with respect
to the series of Preferred Securities related to such series of
Securities and shall have delivered a notice to the Trustee to that
effect;
(b) default in the payment of the principal of (or
premium, if any, on) any of the Securities of that series, as and when
the same shall become due and payable whether at maturity, upon
redemption, by declaration of acceleration or otherwise, or in any
payment required by any sinking or analogous fund established with
respect to that series; provided that (i) no such default in the
payment of principal (or premium, if any) shall be deemed to exist if,
on or prior to the date such principal (and premium, if any) became
due (whether at maturity, upon redemption, by declaration of
acceleration or otherwise), the Company shall have made a payment,
sufficient to pay such principal (and premium, if any), pursuant to
the Guarantee with respect to the series of Preferred Securities
related to such series of Securities and shall have delivered a notice
to the Trustee to that effect and (ii) a valid exchange of a Security
upon its Maturity for another Security pursuant to this Indenture or
the supplemental indenture, Board Resolution or other instrument
authorizing Securities of that series shall not constitute a default
in the payment of the principal of the Security being exchanged for
this purpose;
(c) if applicable to the Securities of that series,
failure by the Company to issue the American General Preferred Stock
or American General Common Stock upon an election by the Holder or
Holders of such Securities to convert such Securities into
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shares of American General Preferred Stock or American General Common
Stock, as the case may be, pursuant to the supplemental indenture,
Board Resolution or other instrument authorizing such series of
Securities;
(d) failure on the part of the Company duly to observe or
perform in any material respect any other of the covenants or
agreements on the part of the Company with respect to that series
contained in such Securities or otherwise established with respect to
that series of Securities pursuant to Section 301 hereof or contained
in this Indenture (other than a covenant or agreement which has been
expressly included in this Indenture solely for the benefit of one or
more series of Securities other than such series) and continuance of
such failure for a period of 90 days after the date on which written
notice of such failure, requiring the same to be remedied and stating
that such notice is a "Notice of Default" hereunder, shall have been
given to the Company by the Trustee, by registered or certified mail,
or to the Company and the Trustee by a Holder or Holders of at least
25% in aggregate principal amount of the Securities of that series at
the time Outstanding or the holder or holders of at least 25% in
aggregate liquidation preference of Preferred Securities of the series
related to such series of Securities;
(e) the liquidation, dissolution or winding-up of the
American General LLC that issued the Preferred Securities of the
series related to such series of Securities, except in connection
with, or after, the exchange of such Preferred Securities for such
Securities or the related series of American General Preferred Stock,
as the case may be, or in connection with any merger, consolidation,
conveyance, transfer or lease of assets permitted by the applicable
LLC Agreement;
(f) a court having jurisdiction in the premises shall
have entered a decree or order for relief in respect of the Company in
an involuntary proceeding under any applicable United States
bankruptcy, insolvency, reorganization or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or other similar official) of the
Company or of all or any substantial part of its property, or ordering
the winding-up or liquidation of its affairs, and such decree or order
shall remain unstayed and in effect for a period of 60 consecutive
days;
(g) the Company shall have commenced a voluntary
proceeding under any applicable United States bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect, or
shall have consented to the entry of an order for relief in an
involuntary case under any such law, or shall have consented to the
appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or other similar official)
of the Company or of all or any substantial part of its property, or
shall have made an assignment for the benefit of creditors; or
(h) any other Event of Default provided with respect to
such series of Securities in the supplemental indenture, Board
Resolution or other instrument authorizing such series.
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SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing (other than an Event of Default
specified in Section 501 (f) or (g)), then, and in every such case, the Trustee
or the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of that series may declare the principal amount of all
of the Securities of that series to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by the Holders), and
upon any such declaration such principal amount shall become immediately due
and payable. If an Event of Default specified in Section 501 (f) or (g) with
respect to Securities of any series at the time Outstanding occurs and is
continuing, then, and in every such case, the principal amount of all of the
Securities of that series shall become and be immediately due and payable
without any declaration or other action on the part of the Trustee or any
Holder.
At any time after such acceleration with respect to Securities of any
series and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter provided in this Article, the Holders of
a majority in aggregate principal amount of the Outstanding Securities of that
series, by written notice to the Company and the Trustee, may, subject to the
provisions of Section 1007(b)(iii), rescind and annul such acceleration and its
consequences if:
(a) the Company has paid or deposited with the Trustee a
sum of money sufficient to pay
(1) all overdue installments of any interest
(including any Additional Interest) on all Securities of that
series;
(2) the principal of and any premium on any
Securities of that series which have become due otherwise than
by reason of such acceleration and interest thereon at the
rate or rates borne by or provided for in such Securities;
(3) to the extent that payment of such interest
is lawful, interest upon overdue installments of interest
(including Additional Interest) at the rate or rates borne by
or provided for in such Securities, and
(4) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(b) all Events of Default with respect to Securities of
that series, other than the non-payment of the principal of Securities
of that series which has become due solely by reason of such
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if
(a) default is made in the payment of any installment of
interest (including any Additional Interest) on any Security when such
interest shall have become due and payable and such default continues
for a period of 10 days, or
(b) default is made in the payment of the principal of or
any premium on any Security at its Maturity,
the Company shall, upon demand of the Trustee, pay to it, for the benefit of
the Holders of all Securities which are of the same series as such Security,
the whole amount of money then due and payable with respect to such Securities
for principal, premium, interest (including any Additional Interest) and, to
the extent that payment of such interest shall be legally enforceable, interest
upon any overdue principal (and premium, if any) and upon any overdue
installments of interest (including any Additional Interest), at the rate or
rates borne by or provided for in such series of Securities, and, in addition
thereto, such further amount of money as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or such Securities
or in aid of the exercise of any power granted herein or therein, or to enforce
any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration of
acceleration or otherwise and irrespective of whether the Trustee shall have
made any demand on the
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Company for the payment of any overdue principal, premium, or interest) shall
be entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount, or
such lesser amount as may be provided for in the Securities of any
series, of principal, premium and interest (including any Additional
Interest) owing and unpaid in respect of the Securities and to file
such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders of Securities
allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claim and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to
the Holders of Securities, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section
607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a
Security any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize
the Trustee to vote in respect of the claim of any Holder of a Security in any
such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture or any of the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, any premium
or interest (including Additional Interest), upon presentation of the
Securities, and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
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FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: Subject to Article Thirteen, to the payment of the
amounts then due and unpaid upon the Securities for principal, any
premium and interest (including any Additional Interest) in respect of
which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
aggregate amounts due and payable on such Securities for principal,
any premium and interest (including any Additional Interest),
respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. LIMITATION ON SUITS.
Subject to Section 508, no Holder of any Security of any series shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(a) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Securities of that series;
(b) the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities of that series shall
have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(e) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Securities of
that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Security to affect, disturb or prejudice the rights of
any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all of such Holders.
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SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, ANY
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Sections 305 and 307) any interest (including any Additional Interest) on such
Security, on the respective Stated Maturity or Maturities thereof expressed in
such Security (or, in the case of redemption, on the Redemption Date or, in the
case of repayment at the option of such Holder, on the date such repayment is
due) and to institute suit for the enforcement of any such payment, and such
right shall not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Security has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and the Holders of Securities shall, subject to
any determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and such Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders of Securities is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders of Securities may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders of Securities.
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SECTION 512. CONTROL BY HOLDERS OF SECURITIES.
Subject to the provisions of Section 1007(b)(i), the Holders of a
majority in aggregate principal amount of the Outstanding Securities of any
series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee with respect to the Securities of such
series, provided that
(a) such direction shall not be in conflict with any rule
of law or with this Indenture or with the Securities of such series;
(b) the Trustee may take any other action deemed proper
by the Trustee that is not inconsistent with such direction;
(c) such direction is not unduly prejudicial to the
rights of other Holders of Securities of such series not joining in
such action; and
(d) subject to the provisions of Sections 601 and 603,
the Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a Responsible Officer
or Officers of the Trustee, determine that the proceeding so directed
would involve the Trustee in personal liability.
SECTION 513. WAIVER OF PAST DEFAULTS.
Subject to the provisions of Section 1007(b)(ii), the Holders of a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive any past
default hereunder with respect to the Securities of such series and its
consequences, except a default
(a) in the payment of the principal of or any premium or
interest (including Additional Interest) on any Security of such
series; or
(b) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent
of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit
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for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant (other than the Company and the Trustee) in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in
aggregate principal amount of the Outstanding Securities of any series, to any
suit instituted by any Holder of a Security for the enforcement of the payment
of the principal of or any premium or interest (including Additional Interest)
on any Security, on or after the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on or after the Redemption Date
or, in the case of repayment at the option of a Holder, on or after the date
such repayment is due) or interest on any overdue principal of any Security, or
to any suit instituted by any Holder of a Security for the enforcement of any
right to convert or exchange such Security into or for another security.
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
SECTION 516. SPECIAL TRUSTEE
(a) The Company expressly acknowledges that, under the
circumstances set forth in the applicable LLC Agreement or Written
Action, the holders of each series of Preferred Securities shall have
the right, prior to a Special Event Exchange of such series of
Preferred Securities, to appoint a Special Trustee if an Event of
Default with respect to the series of Securities related to such
series of Preferred Securities or certain other events specified in
such LLC Agreement or Written Action shall have occurred and be
continuing. Such Special Trustee shall be authorized to exercise the
rights and remedies of the American General LLC that issued the
Preferred Securities of such series as Holder of the related series of
Securities under this Indenture, other than the right to receive any
payments on such Securities. Without limiting the foregoing, such
Special Trustee shall be entitled to give any request, demand,
authorization, direction, notice, consent or waiver hereunder as if
it, rather than such American General LLC, were the Holder of the
Securities of such series and, in determining whether the Holders of
the requisite principal amount of Outstanding Securities of such
series have given any such request, demand, authorization, direction,
notice, consent or waiver, such
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Securities shall be deemed to be owned by the Special Trustee rather
than such American General LLC. Any Special Trustee so appointed
shall vacate office immediately in accordance with the applicable LLC
Agreement if all Events of Default or other events specified in the
applicable LLC Agreement or Written Action giving rise to such right
of appointment have been cured or waived. The Company shall notify
the Trustee when any such Special Trustee shall have been appointed
and the date on which the authority of the Special Trustee shall have
expired or terminated.
(b) Without limiting the generality of the foregoing, any
Special Trustee appointed with respect to a series of Preferred
Securities, in its own name and as Special Trustee of an express
trust, may, subject to Section 507, institute a proceeding, including,
without limitation, any suit in equity, an action at law or other
judicial or administrative proceeding, to enforce the creditor's
rights of the American General LLC that is the Holder of the related
series of Securities directly against the Company to the same extent
and subject to the same limitations as such American General LLC, as a
Holder, could do so and on behalf of such American General LLC, and
may prosecute such proceeding to judgment or final decree, and enforce
the same against the Company and, subject to Article Thirteen,
collect, out of the property, wherever situated, of the Company the
monies adjudged or decreed to be payable in the manner and to the
extent provided by law.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such
duties, and only such duties, as are specifically set forth in
this Indenture, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture,
but in the case of any such certificates or opinions which by
any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to
the requirements of this Indenture.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the
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same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its
own negligent failure to act, or its own wilful misconduct, except
that
(1) this subsection shall not be construed to
limit the effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of a majority
in aggregate principal amount of the Outstanding Securities of
any series or a Special Trustee appointed with respect to the
Securities of such series relating to the time, method and
place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture with respect to the
Securities of such series; and
(4) no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject
to the provisions of this Section.
SECTION 602. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit, in the
manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
notice of such default hereunder known to the Trustee, unless such default
shall have been cured or waived; provided, however, that, except in the case of
a default in the payment of the principal of or any premium or interest
(including Additional Interest) on any Security of such series or in the
payment of any sinking fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith
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determine that the withholding of such notice is in the interests of the
Holders of Securities of such series; and provided, further, that in the case
of any default of the character specified in Section 501(d) with respect to
Securities of such series, no such notice to Holders shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time
or both would become, an Event of Default with respect to Securities of such
series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party
or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order (other than delivery of any Security to the Trustee for
authentication and delivery pursuant to Section 303 which shall be
sufficiently evidenced as provided therein) and any resolution of the
Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by or pursuant to this
Indenture at the request or direction of any of the Holders of
Securities of any series or a Special Trustee pursuant to this
Indenture, unless such Holders or Special Trustee shall have offered
to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or
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investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(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; and
(h) the Trustee shall not be charged with knowledge of
any Event of Default (other than a default in any payment with respect
to a Security due on a fixed date and with respect to which the
Trustee is a Paying Agent) unless either (i) a Responsible Officer of
the Trustee assigned to its corporate trustee administration
department shall have actual knowledge thereof or (ii) the Trustee
shall have received written notice thereof in accordance with Section
105 from the Company, any Holder or a Special Trustee.
SECTION 604. NOT RESPONSIBLE FOR RECITALS, ISSUANCE OF SECURITIES OR
FOR PREFERRED SECURITIES.
The recitals contained herein and in the Securities (except the
Trustee's certificate of authentication) shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities, except
that the Trustee represents that it is duly authorized to execute and deliver
this Indenture, authenticate the Securities and perform its obligations
hereunder and that the statements made by it in a Statement of Eligibility on
Form T-1 supplied to the Company are true and accurate, subject to the
qualifications set forth therein. Neither the Trustee nor any Authenticating
Agent shall be accountable for the use or application by the Company of
Securities or the proceeds thereof.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of the Preferred Securities and the Trustee (as well as the Company and
any conversion agent) shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of a Preferred
Security to establish that such Person is such a holder. Prior to a Special
Event Exchange with respect to a series of Preferred Securities, the Trustee
(and any conversion agent) may conclusively rely on a certificate signed by an
officer of the Managing Member of the American General LLC that issued such
Preferred Securities or a certificate signed by an officer or representative of
a Special Trustee with respect to such series of Preferred Securities as
evidence that the holders of the necessary percentage of liquidation preference
of Preferred Securities of such series have taken any action contemplated
hereunder and shall have no duty to investigate the truth or accuracy of any
statement contained therein.
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SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Paying Agent, Security Registrar, Authenticating
Agent or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to the
provisions of the Trust Indenture Act, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Paying Agent, Security
Registrar, Authenticating Agent or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except to the extent any such expense,
disbursement or advance may be attributable to the Trustee's
negligence or willful misconduct; and
(c) to indemnify each of the Trustee and its agents for,
and to hold each of them harmless against, any loss, liability or
expense arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder or the performance of
its duties hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder, except to the
extent any such loss, liability or expense may be attributable to its
negligence or willful misconduct.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of or any premium or interest
(including Additional Interest) on particular Securities. "Trustee" for
purposes of this Section 607 includes any predecessor Trustee, but negligence
or bad faith of any Trustee shall not be attributed to any other Trustee.
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SECTION 608. DISQUALIFICATIONS; CONFLICTING INTERESTS.
If the Trustee has or shall acquire any conflicting interest, within
the meaning of the Trust Indenture Act, it shall, within 90 days after
ascertaining that it has such conflicting interest, either eliminate such
conflicting interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation or other person permitted by the Trust Indenture Act to act as
Trustee under an indenture qualified under the Trust Indenture Act and that has
a combined capital and surplus of at least $50,000,000. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Trustee under Section 611.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written notice thereof
to the Company. If the instrument of acceptance by a successor
Trustee required by Section 611 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect
to the Securities of any series by Act of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of such
series delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
608 after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
therefor by the Company or by any such Holder of a Security,
or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be
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appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by or pursuant to a Board
Resolution, may remove such Trustee with respect to all Securities as
to which it is Trustee or (ii) subject to Section 514, any Holder of a
Security who has been a bona fide Holder of a Security of any series
for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for
the removal of such Trustee with respect to all Securities of such
series and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Securities of one or more
series, the Company, by or pursuant to a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of
one or more or all of such series and that at any time there shall be
only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section
611. If, within one year after such resignation, removal or
incapability or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act
of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment in accordance with the
applicable requirements of Section 611, become the successor Trustee
with respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall
have been so appointed by the Company or the Holders of Securities and
accepted appointment in the manner required by Section 611, any Holder
of a Security who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) The Company shall give notice to the Holders of
Securities of a particular series of each resignation and each removal
of the Trustee with respect to the Securities of such series and each
appointment of a successor Trustee with respect to the Securities of
such series in the manner provided in Section 106. Each such 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.
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SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee
so appointed shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts and duties hereunder of the retiring Trustee; but, on request
of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and
trusts hereunder of the retiring Trustee, and shall duly assign,
transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder, subject nevertheless to its
lien, if any, provided for in Section 607.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute
such Trustees as co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such
Trustee and that no Trustee shall be responsible for any notice given
to, or received by, or any act or failure to act on the part of any
other Trustee hereunder; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein, such
retiring Trustee shall with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates have
no further responsibility for the exercise of rights and powers or for
the performance of the duties and obligations vested in the Trustee
under this Indenture other than as hereinafter expressly set forth,
and each such successor Trustee without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly
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assign, transfer and deliver to such successor Trustee, to the extent
contemplated by such supplemental indenture, the property and money
held by such retiring Trustee hereunder with respect to the Securities
of that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in subsection (a) or (b) of this
Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or 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 such
series issued upon original issue or exchange, registration of transfer or
partial redemption thereof or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Any such appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer of the Trustee, a copy of which instrument
shall be promptly furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall at all
times be a bank or trust company or corporation organized and doing business
and in good standing under the laws of the United States, any State thereof or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $5,000,000 and
subject to supervision or examination by Federal or State authorities. If such
Authenticating Agent publishes reports of
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condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case
at any time such Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by United States first-class mail, postage
prepaid, to all Holders of Securities of the series with respect to which such
Authenticating Agent shall serve, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation, including reimbursement of its reasonable
expenses for its services under this Section.
The provisions of Sections 308, 604 and 605 shall be applicable to
each Authenticating Agent.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternative certificate of authentication substantially in the following form:
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This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
________________________________________
as Trustee
By _____________________________________
as Authenticating Agent
By _____________________________________
Authorized Officer
If all of the Securities of any series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
by the Company, shall appoint in accordance with this Section 613, and on terms
acceptable to the Trustee, an Authenticating Agent having an office in a Place
of Payment designated by the Company with respect to such series of Securities.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS OF SECURITIES.
The Company shall furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than May 15 and November 15
in each year, commencing November 15, 1995, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the
Holders of Securities of such series as of the date not more than 15
days prior to the date of delivery thereof, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished,
provided, however, that so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished for Securities for which the
Trustee acts as Security Registrar.
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SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
The Trustee shall comply with the obligations imposed upon it pursuant
to Section 312 of the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any Authenticating Agent nor any Paying Agent nor any Security Registrar shall
be held accountable by reason of the disclosure of any information as to the
names and addresses of the Holders of Securities in accordance with Section
312(c) of the Trust Indenture Act, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 312(b)
of the Trust Indenture Act.
SECTION 703. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing
with the first May 15 after the first issuance of Securities pursuant
to this Indenture, if required by Section 313(a) of the Trust
Indenture Act, the Trustee shall transmit a brief report dated as of
such May 15 with respect to any of the events specified in said
Section 313(a) which may have occurred since the later of the
immediately preceding May 15 and the date of this Indenture.
(b) The Trustee shall transmit the reports required by
Section 313(b) of the Trust Indenture Act at the times specified
therein.
(c) Reports pursuant to this Section shall be transmitted
in the manner and to the Persons required by Sections 313(c) and (d)
of the Trust Indenture Act.
SECTION 704. REPORTS BY COMPANY.
The Company, pursuant to Section 314(a) of the Trust Indenture Act,
shall:
(a) file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies of
the annual reports and of the information, documents, and other
reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe)
which the Company may be required to file with the Commission pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934,
as amended; 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, as amended, in respect
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of a security listed and registered on a national securities exchange
as may be prescribed from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(c) transmit to the Holders of Securities within 30 days
after the filing thereof with the Trustee, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act, such
summaries of any information, documents and reports required to be
filed by the Company pursuant to subsections (a) and (b) of this
Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, OR CONVEYANCE
SECTION 801. CONSOLIDATIONS AND MERGERS OF COMPANY AND CONVEYANCES
PERMITTED SUBJECT TO CERTAIN CONDITIONS.
The Company may consolidate with, merge with or into, or convey,
transfer or lease all or substantially all of its assets to any other Person,
provided that (a) (i) in the case of a merger, the Company is the surviving
entity in such merger, or (ii) in the case of a merger in which the Company is
not the surviving entity or in the case of a consolidation or a conveyance,
transfer or lease of assets, the Person into which the Company is merged or
which is formed by such consolidation or the Person which acquires by
conveyance, transfer or lease all or substantially all of the assets of the
Company shall be a Person duly organized and validly existing under the laws of
the United States of America or a State thereof and (x) such Person shall
expressly assume by supplemental indenture, in form satisfactory to the
Trustee, executed and delivered to the Trustee by such Person, the due and
punctual payment of the principal of and any premium and interest (including
Additional Interest) on all the Securities, according to their tenor, and the
due and punctual performance and observance of all of the other covenants of
this Indenture and the Securities to be performed by the Company, and, (y) if
any Preferred Securities are then outstanding, such Person shall expressly
assume, in a written instrument delivered to the Managing Member of the
American General LLC which issued such Preferred Securities, all of the
obligations of the Company under the Guarantee related to such Preferred
Securities, and (b) in each case, after giving effect to such consolidation,
merger, conveyance, transfer or lease, no Event of Default, and no event which,
after notice or lapse of time, or both, would become an Event of Default, shall
have occurred and be continuing.
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SECTION 802. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION.
In case of any such merger in which the Company is not the surviving
entity or any such consolidation, conveyance, transfer or lease and upon any
such assumption by the successor Person, such successor Person shall succeed to
and be substituted for the Company, with the same effect as if it had been
named herein as the party of the first part, and the predecessor, except in the
event of a conveyance by way of lease, shall be relieved of any further
obligation under this Indenture and the Securities and, if applicable, the
Guarantee assumed by such successor Person. Such successor Person thereupon
may cause to be signed, and may issue either in its own name or in the name of
the Company, any or all of the Securities issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee, and,
upon the order of such successor, instead of the Company, and subject to all
the terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Securities which previously shall have
been signed and delivered by the officers of the Company to the Trustee for
authentication, and any Securities which such successor thereafter shall cause
to be signed and delivered to the Trustee for that purpose. All the Securities
so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had been issued at
the date of the execution hereof.
In case of any such merger, consolidation, conveyance, transfer or
lease, such changes in phraseology and form (but not in substance) may be made
in the Securities thereafter to be issued as may be appropriate.
SECTION 803. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL.
The Trustee, subject to the provisions of Sections 601 and 603, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such merger, consolidation, conveyance, transfer or lease,
and any such assumption by the successor Person, complies with the provisions
of this Article.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
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(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities contained; or
(b) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Company; or
(c) to add any additional Events of Default with respect
to all or any series of Securities; or
(d) to add to or change any of the provisions of this
Indenture to change or eliminate any restrictions on the payment of
principal (or premium, if any) or any interest (including Additional
Interest) with respect to Securities, to modify the provisions
relating to global Securities, or to permit the issuance of Securities
in bearer or uncertificated form, provided that any such action shall
not adversely affect the interests of the Holders of Securities of any
series in any material respect; or
(e) to add to, change or eliminate any of the provisions
of this Indenture in respect of one or more series of Securities,
provided that any such addition, change or elimination not otherwise
permitted under this Section 901 shall (i) become effective only when
there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the
benefit of such provision or (ii) not apply to any Security then
Outstanding; or
(f) to secure the Securities; or
(g) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(h) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
to facilitate the administration of the trusts hereunder by more than
one Trustee pursuant to the requirements of Section 611(b); or
(i) to provide that the Company shall be deemed to have
paid and discharged the entire indebtedness on all the Outstanding
Securities of any series on the 91st day after the date of the deposit
referred to in paragraph (5) hereof, and that the provisions of this
Indenture, as it relates to such Outstanding Securities shall no
longer be in effect (and the Trustee, at the expense of the Company,
shall at Company Request, execute proper instruments acknowledging the
same), except as to:
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(1) the rights of Holders of Securities to
receive, from the trust funds described in paragraph (4)
hereof, (i) payment of the principal of (and premium, if any)
and interest (including any Additional Interest) on the
Outstanding Securities of that series on the Stated Maturity
or Maturity of such principal, premium, if any, and interest
and (ii) any mandatory sinking fund payments or analogous
payments applicable to Securities of such series on the day on
which such payments are due and payable in accordance with the
terms of this Indenture and of such Securities;
(2) the Company's obligations with respect to
such Securities under Sections 305, 306, 402, 1002 and 1003,
(3) the rights, powers, trusts, duties and
immunities of the Trustee hereunder, and
(4) such other rights, if any, that are specified
in such supplemental indenture as surviving such payment and
discharge;
provided that the following conditions shall have been satisfied:
(5) with reference to such provision, the Company
has irrevocably deposited or caused to be irrevocably
deposited (except as provided in Section 402(c)) with the
Trustee, as trust funds and/or obligations in trust,
specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of the Securities of that series,
(i) money in an amount, or (ii) Government Obligations which
through the payment of interest and principal in respect
thereof in accordance with their terms, without consideration
of any reinvestment thereof, will provide not later than one
day before the due date of any payment referred to in clause
(A) or (B) of this paragraph (4) money in an amount or (iii) a
combination thereof, sufficient, as expressed in a Certificate
of a Firm of Independent Public Accountants delivered to the
Trustee, to pay and discharge (A) the principal of (and
premium, if any) and interest (including any Additional
Interest) on the Outstanding Securities of that series due on
the Stated Maturity or Maturity of such principal, premium, if
any, and/or interest and (B) any mandatory sinking fund
payments or analogous payments applicable to Securities of
such series on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of
such Securities;
(6) such deposit shall not cause the Trustee with
respect to the Securities of that series to have a conflicting
interest for purposes of the Trust Indenture Act with respect
to the Securities of any series;
(7) such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture or
any other agreement or instrument relating to borrowed money,
pursuant to which in excess of $10,000,000
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principal amount is then outstanding, to which the Company is
a party or by which it is bound;
(8) such provision would not cause the
Outstanding Securities of such series then listed on the New
York Stock Exchange to be delisted as a result thereof;
(9) no Event of Default or event which with
notice or lapse of time or both would become an Event of
Default with respect to Securities of that series shall have
occurred and be continuing on the date of such deposit or
during the period ending on the 91st day after such date;
(10) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel to the effect
that (i) the Company has received from, or there has been
published by, the United States Internal Revenue Service a
ruling, or (ii) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in
either case, to the effect that Holders of the Securities of
such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income
tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit, defeasance
and discharge had not occurred;
(11) if the Securities of such series are to be
redeemed, either notice of such redemption shall have been
given or the Company shall have given the Trustee irrevocable
directions to give notice of such redemption in the name, and
at the expense of the Company, under arrangements satisfactory
to the Trustee;
(12) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating
that all conditions precedent provided for relating to the
defeasance contemplated by such provision have been complied
with; and
(13) such supplemental indenture shall contain a
provision substantially to the same effect as the last
paragraph of Section 1010 but relating to the Securities to be
discharged under the terms of such supplemental indenture; or
(j) to add to, delete from or revise the conditions,
limitations and restrictions on the authorized amount, terms or
purposes of issue, authentication and delivery of Securities, as
herein set forth; or
(k) to make provision with respect to the conversion or
exchange rights of the Holders of any series of Securities pursuant to
the requirements of the supplemental
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indenture, Board Resolution, or other instrument establishing the
terms of such series of Securities; or
(l) subject to Section 903(a), to make any change in
Article Thirteen that would limit or terminate the benefits available
to any holder of Senior Indebtedness under such Article; or
(m) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided such
action shall not adversely affect the interests of the Holders of
Securities of any series in any material respect.
No consent of the holders of any Preferred Securities shall be
required in connection with any supplemental indenture entered into pursuant to
this Section 901.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of such Holders delivered to the Company and the
Trustee, the Company, when authorized by or pursuant to a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities of such series under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected
thereby:
(i) change the Stated Maturity of the principal of, or
any installment of principal of or interest (including Additional
Interest) on, any Security, or change any obligation of the Company to
pay Additional Amounts pursuant to Section 1004 (except as
contemplated by Section 801 and permitted by Section 901(a) and (d)),
or reduce the principal amount thereof, any premium payable upon the
redemption thereof or the rate or amount of interest (including
Additional Interest) payable thereon, or adversely affect any right of
repayment at the option of the Holder of any Security, or, subject to
the provisions of Section 1002, change any Place of Payment where, or
the coin or currency in which, the principal of any Security or any
premium or interest (including any Additional Interest) on any
Security is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date or, in the case of repayment at the option of the Holder, on or
after the date for repayment); or
(ii) adversely affect any right to convert or exchange any
Security or modify the provisions of this Indenture with respect to
the subordination of the Securities in a manner adverse to the
Holders; or
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(iii) reduce the percentage in aggregate principal amount
of the Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of compliance
with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture or
reduce the requirements of Section 1404 for quorum or voting; or
(iv) modify any of the provisions of this Section, Section
513 or Section 1009, except to increase the percentage in aggregate
principal amount of the Outstanding Securities of any series, the
consent of whose Holders is required for the actions specified herein
or therein, or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby; provided,
however, that this subsection shall not be deemed to require the
consent of any Holder of Securities with respect to changes in the
references to "the Trustee" and concomitant changes in this Section
and Section 1009, or the deletion of this proviso, in accordance with
the requirements of Section 901(h).
SECTION 903. GENERAL PROVISIONS REGARDING SUPPLEMENTAL INDENTURES.
(a) A supplemental indenture entered into pursuant to Section 901
or Section 902 may not make any change that adversely affects the rights under
Article Thirteen of any holder of Senior Indebtedness then outstanding unless
the holders of such Senior Indebtedness (or any group or representative thereof
authorized to give a consent) consent to such change. Moreover, prior to a
Special Event Exchange with respect to a series of Preferred Securities then
outstanding, no such supplemental indenture entered into pursuant to Section
902 shall amend the series of Securities related to such series of Preferred
Securities or the provisions of this Indenture benefiting such series of
Securities unless the prior approval of the holders of at least 66 2/3% of the
aggregate liquidation preference of the Preferred Securities of such series
then outstanding is obtained; provided, however, that where a consent of each
Holder of Securities of a particular series is required pursuant to Section
902, the prior consent of each holder of the related series of Preferred
Securities shall be first obtained.
(b) A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series (or the
holders of Preferred Securities of any series not related to such particular
series of Securities).
(c) It shall not be necessary for any Act of Holders of Securities
or action of the holders of Preferred Securities under this Section to approve
the particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act or action shall approve the substance thereof.
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SECTION 904. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modification thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 905. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 906. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 907. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Board of Directors, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, ANY PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of the Holders of
Securities of each series that it will duly and punctually pay the principal of
and any premium and interest, including any Additional Interest (subject to any
right of the Company to extend an interest payment period or, if so provided
pursuant to Section 301, to exchange a Security upon the Maturity of such
Security for another Security and subject to Section 1502) on the Securities of
that series in accordance with the terms of such series of Securities and this
Indenture.
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SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for conversion or exchange or for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be served, and the Company hereby
initially appoints the Trustee at its Corporate Trust Office as its agent to
receive all such presentations, surrenders, notices and demands. The Company
will give prompt written notice to the Trustee of the location, and any change
in the location, of each such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all of such purposes, and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in accordance with the requirements set forth
above for Securities of any series for such purposes. The Company shall give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency. Unless
otherwise set forth in, or pursuant to, a Board Resolution or any indenture
supplemental hereto with respect to a series of Securities, the Company hereby
designates as the Place of Payment for each series of Securities the Borough of
Manhattan, The City of New York, and initially appoints the Trustee at its
Corporate Trust Office as Paying Agent and as its agent to receive all such
presentations, surrenders, notices and demands.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it shall, on or before each due date of
the principal of and any premium or interest (including any Additional
Interest) on any of the Securities of that series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal, any premium and interest (including any Additional Interest) so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and shall promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it shall, on or prior to each due date of the principal
of and any premium or interest (including any Additional Interest) on any
Securities of that series, deposit with a Paying Agent a sum sufficient to pay
the principal, any premium and interest (including any Additional Interest) so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium and interest (including any Additional
Interest), and (unless such
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Paying Agent is the Trustee) the Company shall promptly notify the Trustee of
its action or failure so to act.
The Company shall cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the
principal of and any premium or interest (including any Additional
Interest) on Securities of that series in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as provided in or pursuant to this Indenture;
(b) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of that series) in the
making of any payment of the principal of, or premium, if any, or
interest (including any Additional Interest) on Securities of that
series; and
(c) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge or defeasance of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent, such sums
to be held by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Except as otherwise specified as contemplated by Section 301 for
Securities of any particular series, any money deposited with the Trustee or
any Paying Agent, or then held by the Company, in trust for the payment of the
principal of and any premium or interest (including any Additional Interest) on
any Security of any series and remaining unclaimed for two years after such
principal and any premium or interest (including any Additional Interest) has
become due and payable shall be paid to the Company upon Company Request along
with interest, if any, that has been accumulated thereon 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 of such principal, premium or interest (including any
Additional Interest), without interest thereon, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published
once, in an Authorized Newspaper in each Place of Payment for such series or to
be mailed to Holders of Securities of such series, or both, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from
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the date of such publication or mailing, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 1004. ADDITIONAL AMOUNTS.
If the Securities of a series provide for the payment of Additional
Amounts to the Holders of such Securities, then the Company shall pay to each
Holder of such Securities the Additional Amounts as provided therein.
Except as otherwise provided in or pursuant to this Indenture, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities upon which such Additional Amounts shall be payable (or, if the
Securities of that series shall not bear interest prior to Maturity, the first
day on which a payment of principal and any premium is made), and at least 10
days prior to each date of payment of principal and any premium or interest if
there has been any change with respect to the matters set forth in the
below-mentioned Officers' Certificate, the Company will furnish the Trustee and
the Company's Paying Agent or Paying Agents, if other than the Trustee or the
Company, with an Officers' Certificate stating the amount of the Additional
Amount payable per an amount of the principal of the Securities of such series
equal to the minimum authorized denomination of such Securities (and, if such
Additional Amounts are payable only with respect to particular Securities, then
the names of the Holders of such Securities).
SECTION 1005. CORPORATE EXISTENCE.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the rights (charter and statutory) and franchises of the Company,
provided, however, that the Company shall not be required to preserve any such
right or franchise if the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and that
the loss thereof is not disadvantageous in any material respect to the Holders
of Securities.
SECTION 1006. LIMITATIONS ON DIVIDENDS AND CERTAIN OTHER PAYMENTS.
The Company covenants, for the benefit of the Holders of each series
of Securities, that, subject to the next succeeding sentence, it shall not
declare or pay any dividend on, and it shall not, nor shall it permit any of
its Subsidiaries to, redeem, purchase, acquire or make a liquidation payment
with respect to, any shares of American General Capital Stock, or make any
guarantee payments with respect to the foregoing, if at such time (a) the
Company shall have given notice of its election to extend an interest payment
period for such series of Securities in accordance with the terms of such
Securities and such period, or any extension thereof, shall be continuing, (b)
the Company shall be in default with respect to its payment or other
obligations under the Guarantee with respect to the series of Preferred
Securities related to such series of Securities, or (c) an Event of Default
hereunder with respect to such series of Securities shall have occurred and be
continuing. The preceding sentence, however,
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shall not restrict (i) the purchase or acquisition of shares of American
General Common Stock in connection with the satisfaction by the Company or a
Subsidiary of its obligations under any employee benefit plan or the
satisfaction by the Company of its obligations pursuant to any put contract
requiring the Company to purchase any American General Common Stock, (ii) any
of the actions described in the preceding sentence resulting from any
reclassification of American General Capital Stock or the exchange or
conversion of one class or series of American General Capital Stock for another
class or series of American General Capital Stock, (iii) redemptions or
purchases of any share purchase rights issued by the Company pursuant to its
Rights Agreement, dated as of July 27, 1989, between the Company and First
Chicago Trust Company of New York, as the same may exist at the time, (iv) the
declaration and payment of a dividend or distribution of similar share purchase
rights in the future, or (v) the purchase of fractional interests in shares of
American General Capital Stock pursuant to the conversion or exchange
provisions of such American General Capital Stock or the security being
converted or exchanged. The Company covenants that it shall take all actions
necessary to ensure the compliance of its Subsidiaries with this Section 1006.
SECTION 1007. CERTAIN COVENANTS REGARDING THE AMERICAN GENERAL LLCS.
(a) The Company covenants that, prior to a Special Event Exchange
of a series of Preferred Securities which is then outstanding, the Company
shall:
(i) not cause or permit any LLC Common Securities of
the American General LLC that is the issuer of the Preferred
Securities of such series to be transferred (other than in connection
with a merger, consolidation, conveyance, transfer or lease of all or
substantially all of the assets of the holder of such LLC Common
Securities permitted by Article Eight or the applicable provisions of
the applicable LLC Agreement);
(ii) maintain direct or indirect ownership of all
outstanding LLC Common Securities and other limited liability company
interests (other than Preferred Securities) of the American General
LLC that is the issuer of the Preferred Securities of such series,
except as may be permitted by the applicable LLC Agreement;
(iii) cause at least 21% of all interests in the
capital, income, gain, loss, deduction and credit of such American
General LLC to be represented by the LLC Common Securities of such
American General LLC;
(iv) not voluntarily liquidate, dissolve or wind-up
(other than following a conveyance of all or substantially all of the
Company's assets permitted by Article Eight) or permit the Managing
Member of the American General LLC that is the issuer of the Preferred
Securities of such series, or such American General LLC, to voluntary
liquidate, dissolve or wind-up (except, in the case of the Managing
Member, following a conveyance of all or substantially all of its
assets permitted by the applicable provisions of the applicable LLC
Agreement and, in the case of such American General LLC, in connection
with or after a permitted exchange of all outstanding series of
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Preferred Securities of such American General LLC for the related
series of Securities or American General Preferred Stock);
(v) except as otherwise permitted by the applicable
LLC Agreement or Written Action, cause American General Delaware
Management Corporation to remain the Managing Member of such American
General LLC and to perform timely all of its duties as such Managing
Member (including the duty to cause such American General LLC to
declare and pay dividends on such series of Preferred Securities to
the extent set forth in the applicable LLC Agreement and the Written
Action authorizing such series of Preferred Securities); and
(vi) if so provided in the applicable Written Action
and in the supplemental indenture, Board Resolution or other
instrument authorizing the related series of Securities pursuant to
Section 301, issue and/or deliver American General Preferred Stock or
American General Common Stock, as the case may be, upon an election by
the holder or holders of the Preferred Securities of the related
series to exchange their Preferred Securities of such series for
Securities of the related series and thereafter convert such
Securities into shares of American General Preferred Stock or American
General Common Stock.
(b) The Company also covenants that, prior to a Special Event
Exchange of a series of Preferred Securities which is then outstanding, the
Company shall not permit the Managing Member of the American General LLC that
is the issuer of such series of Preferred Securities from doing any of the
following:
(i) at any time at which a Special Trustee has been
appointed with respect to such series of Preferred Securities,
directing the time, method and place of conducting any proceeding for
any remedy available to the Special Trustee or the Trustee, or the
exercise of any trust or power conferred on the Special Trustee or the
Trustee, with respect to the related series of Securities;
(ii) waiving compliance with, or any past default
under, the related series of Securities or this Indenture (to the
extent that a Holder of Securities of such series is entitled to the
benefits of the covenant or agreement waived or breached);
(iii) exercising any right to rescind or annul a
declaration that the principal of the Securities of such related
series shall be due and payable; or
(iv) consenting to any amendment, or modification of
the Securities of such related series or of this Indenture;
without, in each case, obtaining the prior approval of the holders of at least
66 2/3% of the aggregate liquidation preference of the outstanding Preferred
Securities of such series; provided, however, that, where a waiver or consent
to an amendment or modification of a Security or this Indenture under the
related series of Securities would, under this Indenture,
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require the waiver or consent of each Holder of such Securities affected
thereby, the Company shall not permit such Managing Member to grant such waiver
or consent without the prior consent of each holder of the Preferred Securities
of such series. The Company shall not permit such Managing Member to revoke
any action previously authorized or approved by a vote or the consent of the
holders of Preferred Securities of such series without the approval of the
holders of at least 66 2/3% of the aggregate liquidation preference of the
Preferred Securities of such series then outstanding (or, if such action
required the approval of each holder of Preferred Securities of such series,
then only with the approval of each such holder).
SECTION 1008. STATEMENT AS TO COMPLIANCE; CERTAIN NOTICES.
(a) The Company shall deliver to the Trustee, within
120 days after the end of each fiscal year, a written statement, which
need not comply with Section 102, signed by the principal executive
officer, the principal financial officer or the principal accounting
officer of the Company, as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture.
For purposes of this Section 1008, such compliance shall be determined
without regard to any period of grace or requirement of notice under
this Indenture.
(b) The Company shall deliver to the Trustee, no
later than the Business Day on which the event occurs, written notice
of the liquidation, dissolution or winding-up of an American General
LLC if such liquidation, dissolution or winding-up would cause the
principal of one or more series of Securities relating to the
Preferred Securities issued by such American General LLC to mature
earlier than the Stated Maturity of such Security.
(c) The Company shall deliver to the Trustee, within
five days after the occurrence thereof, written notice of any event
which after notice or lapse of time or both would become an Event of
Default pursuant to Section 501.
SECTION 1009. WAIVER OF CERTAIN COVENANTS.
(a) The Company may omit in any particular instance
to comply with any covenant or condition set forth in Section 1005 or
1006 and any covenant not currently included in this Indenture but
specified as applicable to a series of Securities as contemplated by
Section 301, with respect to the Securities of any series if, before
or after the time for such compliance, the Holders of a majority in
principal amount of the Outstanding Securities of such series (and,
prior to a Special Event Exchange with respect to the Securities of
such series, the holders of at least 66 2/3% of the aggregate
liquidation preference of the Preferred Securities of the related
series then outstanding) shall, by Act of such Holders, either waive
such compliance in such instance or generally waive compliance with
such covenant or condition.
(b) No waiver granted pursuant to this Section 1009
shall extend to or affect a covenant or condition except to the extent
so expressly waived, and, until such
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waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such covenant or condition
shall remain in full force and effect.
SECTION 1010. DEFEASANCE OF CERTAIN OBLIGATIONS.
If this Section 1010 is specified, as contemplated by Section 301, to
be applicable to Securities of any series, the Company may omit to comply with
any term, provision or condition set forth in Sections 1005 and 1006 and any
additional covenants not currently included in this Indenture specified as
applicable to the Securities of such series as contemplated by Section 301, if
(a) with reference to this Section 1010, the Company
has irrevocably deposited or caused to be irrevocably deposited
(except as provided in Section 402) with the Trustee, as trust funds
and/or obligations in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of
that series, (i) money in an amount, or (ii) Government Obligations
which through the payment of interest and principal in respect thereof
in accordance with their terms, without consideration of any
reinvestment thereof, will provide not later than one day before the
due date of any payment referred to in clause (A) or (B) of this
subsection (a) money in an amount, or (iii) a combination thereof,
sufficient, as expressed in a Certificate of a Firm of Independent
Public Accountants delivered to the Trustee, to pay and discharge (A)
the principal of (and premium, if any) and interest (including any
Additional Interest) on the Outstanding Securities of that series due
on the Stated Maturity or Maturity of such principal, premium, if any,
and interest and (B) any mandatory sinking fund payments or analogous
payments applicable to Securities of such series on the day on which
such payments are due and payable in accordance with the terms of this
Indenture and of such Securities;
(b) such deposit shall not cause the Trustee with
respect to the Securities of that series to have a conflicting
interest for purposes of the Trust Indenture Act with respect to the
Securities of any series;
(c) such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture or any
other agreement or instrument relating to the borrowing of money,
pursuant to which in excess of $10,000,000 principal amount is then
outstanding, to which the Company is a party or by which it is bound;
(d) such deposit would not cause the Outstanding
Securities of such series then listed on the New York Stock Exchange
to be delisted as a result thereof;
(e) no Event of Default or event which with notice or
lapse of time or both would become an Event of Default with respect to
Securities of that series shall have occurred and be continuing on the
date of such deposit;
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(f) the Company has delivered to the Trustee an
Opinion of Counsel to the effect that Holders of the Securities of
such series will not recognize income, gain or loss for Federal income
tax purposes as a result of such deposit and defeasance of certain
obligations and will be subject to Federal income tax on the same
amount and in the same manner and at the same times, as would have
been the case if such deposit and defeasance had not occurred;
(g) if the Securities of such series are to be
redeemed, either notice of such redemption shall have been given or
the Company shall have given the Trustee irrevocable direction to give
notice of such redemption in the name and at the expense of the
Company, under arrangements satisfactory to the Trustee; and
(h) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that all
conditions precedent herein provided for relating to the defeasance
contemplated by this Section have been complied with.
In the event that, subsequent to the date a defeasance is effected
pursuant to this Section 1010 with respect to Securities of any series,
Additional Amounts in excess of those established as of the date such
defeasance is effected become payable in respect of such Securities, in order
to preserve the benefits of the defeasance established hereunder with respect
to such series, the Company shall irrevocably deposit or cause to be
irrevocably deposited in accordance with the provisions of subsection (a) of
this Section 1010, within ten Business Days prior to the earlier to occur of
(i) one year after the existence of such excess Additional Amounts is
established and (ii) the date the first payment in respect of any portion of
such excess Additional Amounts becomes due, such additional funds as are
necessary to satisfy the provisions of such subsection (a) as if a defeasance
were being effected as of the date of such subsequent deposit. For purposes of
this paragraph, the existence of excess Additional Amounts shall be deemed to
have been established as of the date the governmental authority imposing the
tax, duty, assessment or other governmental charge resulting in the Additional
Amounts first publishes the legislation, regulation or other enactment adopting
such tax, duty, assessment or other governmental charge. Failure to comply
with the requirements of this paragraph shall result in the termination of the
benefits of the defeasance established by this Section 1010 with respect to the
Securities of such series.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
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SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at
the option of the Company of Securities of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless all
Securities of such series then Outstanding are held by an American General LLC,
in which event, at least one Business Day prior to such Redemption Date and, in
any case, unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities
of such series to be redeemed. In the case of any redemption of Securities (i)
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, or (ii) pursuant to an
election of the Company which is subject to a condition specified in the terms
of such Securities, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction or condition.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series with the same terms are
to be redeemed, the particular Securities to be redeemed shall be selected by
the Trustee, not more than 60 days prior to the Redemption Date (unless all
Securities of such series then outstanding are held by an American General
LLC), from the Outstanding Securities of such series having such terms not
previously called for redemption, by such method as the Trustee shall deem fair
and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum authorized
denomination for Securities of that series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in Section
106, not less than 30 nor more than 60 days prior to the Redemption Date,
unless a shorter period is specified in Section 1108 or in the Securities to
be redeemed or unless all Securities to be redeemed are held by an American
General LLC, in which event, such notice shall, except as provided in Section
1108, be given at least one Business Day prior to such Redemption Date, to each
Holder of Securities to be redeemed. Failure to give such notice by mailing in
the manner therein provided to the Holder of any Security designated for
redemption as a whole
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or in part, or any defect in the notice to any such Holder, shall not affect
the validity of the proceedings for the redemption of any other such Security
or portion thereof.
Any notice that is given in the manner provided in Section 106 shall
be conclusively presumed to have been duly given, whether or not the Holder of
Securities receives the notice.
All notices of redemption shall state, to the extent applicable:
(a) the Redemption Date;
(b) the Redemption Price and accrued interest
(including Additional Interest), if any;
(c) if less than all Outstanding Securities of any
series having the same terms are to be redeemed, the identification
(and, in the case of partial redemption, the principal amount) of the
particular Security or Securities to be redeemed;
(d) in case any Security is to be redeemed in part
only, the notice which relates to such Security shall state that on
and after the Redemption Date, upon surrender of such Security, the
Holder of such Security will receive, without charge, a new Security
or Securities of authorized denominations for the principal amount
thereof remaining unredeemed;
(e) that on the Redemption Date the Redemption Price
and any accrued interest (including any Additional Interest) shall
become due and payable upon each such Security or portion thereof to
be redeemed and, if applicable, that interest thereon shall cease to
accrue on and after said date;
(f) the current conversion price of the Securities to
be redeemed and that on the third Business Day preceding the
Redemption Date any right to convert the particular Securities to be
redeemed shall terminate;
(g) the place or places where such Securities are to
be surrendered for payment of the Redemption Price and any accrued
interest (including any Additional Interest) pertaining thereto;
(h) that the redemption is for a sinking fund, if
such is the case; and
(i) the CUSIP number (or any other numbers used by a
Depository to identify such Securities), if any, of the Securities to
be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
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SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, except in the case of a sinking fund payment under Article Twelve,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay on the Redemption Date the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date) any accrued interest
(including any Additional Interest) on all the Securities or portions thereof
which are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
If notice of redemption has been given as provided in Section 1104
(unless such notice is not required pursuant to such Section or Section 1108),
the Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, together with any accrued
interest (including any Additional Interest) thereon, and from and after such
date (unless the Company shall default in the payment of the Redemption Price
or any accrued interest (including any Additional Interest)) such Securities
shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with any accrued interest (and any
Additional Interest) to the Redemption Date; provided, however, that
installments of interest on Securities whose Stated Maturity is on or prior to
the Redemption Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close of business on
the relevant Regular Record Dates or Special Record Dates, as the case may be,
according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal, any premium and, to the extent
permitted by applicable law, the interest required to be paid shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered
at any office or agency of the Company maintained for that purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of the same series containing identical terms and
provisions, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered. If a Security in global form
is so surrendered, the Company shall execute, and the Trustee shall
authenticate and deliver to the Depository for such Security, without service
charge, a new
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Security in global form in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Security in global form so
surrendered.
SECTION 1108. PERMITTED VARIATIONS.
If an American General LLC is the Holder of all the Securities of a
particular series, then, in lieu of the provisions set forth in Section 1102,
1103 and 1104, the Company and such Holder may establish such alternative
provisions with respect to such series of Securities as the Company and the
Holder may agree and the Trustee may determine to be acceptable. Additionally,
if a series of Securities is subject to mandatory redemption by reason of the
redemption or pre-payment of the series of Preferred Securities related to such
series of Securities, then no redemption notice need be mailed pursuant to this
Article to the Holder or Holders of such series of Securities.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of such series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company may, in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of a series required to be made
pursuant to the terms of such Securities (i) deliver Outstanding Securities of
such series (other than any of such Securities previously called for
redemption), and (ii) apply as a credit Securities of such series which have
been redeemed either at the election of the Company pursuant to the terms of
such Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, as provided for by the terms
of such Securities; provided that such Securities so delivered or applied as a
credit have not been previously so credited. Such Securities shall be received
and credited for such purpose by the Trustee at the applicable Redemption Price
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specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities (or such shorter notice as the Trustee may approve), the
Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing mandatory sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering or crediting Securities of that series pursuant to
Section 1202, the basis for any such crediting, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment,
and will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days before each such sinking fund payment date the Trustee
shall, subject to Section 1108, select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 1103 and, subject
to Section 1108, cause notice of the redemption thereof to be given in the name
of and at the expense of the Company in the manner provided in Section 1104.
Such notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
SUBORDINATION
SECTION 1301. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of a Security, by
his acceptance thereof, likewise covenants and agrees, that, to the extent and
in the manner hereinafter set forth in this Article, the payment of the
principal of, premium, if any, and interest (including all Additional Interest)
on each and all of the Securities are hereby expressly made subordinate and
subject in right of payment to the prior payment in full in cash of all Senior
Indebtedness.
SECTION 1302. PAYMENT OF PROCEEDS UPON DISSOLUTION, ETC.
Upon any payment or distribution of assets of the Company to creditors
upon any liquidation, dissolution, winding-up, reorganization, assignment for
the benefit of creditors, marshalling of assets or liabilities or any
bankruptcy, insolvency or similar proceedings of the Company (each such event,
if any, herein sometimes referred to as a "Proceeding"):
(a) the holders of Senior Indebtedness shall be
entitled to receive payment in full in cash of all amounts due on or
to become due on or in respect of all
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Senior Indebtedness (including any interest accruing thereon after the
commencement of any such Proceeding, whether or not allowed as a claim
against the Company in such Proceeding), before the Holders of the
Securities are entitled to receive any payment or distribution
(excluding any payment described in the last paragraph of this Section
1302 or any payment described in Section 1309), on account of the
principal of, premium, if any, or interest (including any Additional
Interest) on the Securities or on account of any purchase, redemption
or other acquisition of Securities by the Company or any Subsidiary of
the Company (all such payments, distributions, purchases, redemptions
and acquisitions, whether or not in connection with a Proceeding,
herein referred to, individually and collectively, as a "Securities
Payment"); and
(b) any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or
securities, by set-off or otherwise, to which the Holders of the
Securities or the Trustee would be entitled but for the provisions of
this Article shall be paid by the liquidating trustee or agent or
other Person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly
to the holders of Senior Indebtedness or the Designated Senior
Holders, ratably according to the aggregate amounts remaining unpaid
on account of the Senior Indebtedness held or represented by each, to
the extent necessary to make payment in full in cash of all Senior
Indebtedness remaining unpaid, after giving effect to any concurrent
payment or distribution to the holders of such Senior Indebtedness.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received in
connection with any Proceeding any Securities Payment before all Senior
Indebtedness is paid in full or payment thereof is provided for in cash, then
and in such event such Securities Payment shall be paid over or delivered
forthwith to the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other Person making payment or distribution of
assets of the Company for application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay all Senior Indebtedness in
full in cash after giving effect to any concurrent payment to or for the
holders of Senior Indebtedness.
For purposes of this Article only, the words "payment or distribution"
or "any payment or distribution of any kind or character, whether in cash,
property or securities" shall not be deemed to include a payment or
distribution of stock or securities of the Company provided for by a plan of
reorganization or readjustment authorized by an order or decree of a court of
competent jurisdiction in a reorganization proceeding under any applicable
bankruptcy law or of any other corporation provided for by such plan of
reorganization or readjustment, which stock or securities are subordinated in
right of payment to all then outstanding Senior Indebtedness to substantially
the same extent, or to a greater extent than, the Securities are so
subordinated as provided in this Article. The consolidation of the Company
with, or the merger of the Company into, another Person or the liquidation or
dissolution of the Company following the conveyance, transfer or lease of all
or substantially all of its properties and assets to another Person upon the
terms and conditions set forth in Article Eight shall not be deemed
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a Proceeding for the purposes of this Section if the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance, transfer or lease such properties and assets, as the case may
be, shall, as a part of such consolidation, merger, conveyance, transfer or
lease, comply with the conditions set forth in Article Eight.
SECTION 1303. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.
In the event that any Senior Payment Default (as defined below) shall
have occurred and be continuing, then no Securities Payment shall be made,
unless and until such Senior Payment Default shall have been cured or waived in
writing or shall have ceased to exist or all amounts then due and payable in
respect of such Senior Indebtedness (including, without limitation, amounts
that have become and remain due by acceleration) shall have been paid in full
in cash. "Senior Payment Default" means any default in the payment of the
principal of, premium, if any, or interest on any Senior Indebtedness when due,
whether at the stated maturity of any such payment or by declaration of
acceleration, call for redemption, notice of the exercise of an option to
require such repayment, mandatory payment or prepayment or otherwise.
In the event that any Senior Nonmonetary Default (as defined below)
shall have occurred and be continuing, then, upon the receipt by the Company or
the Trustee of written notice of such Senior Nonmonetary Default from any
holder or the Designated Senior Holder of the Senior Indebtedness to which such
Senior Nonmonetary Default relates, no Securities Payment shall be made during
the period (the "Payment Blockage Period") commencing on the date of such
receipt by the Company or the Trustee of such written notice and ending on the
earlier of (i) the date, if any, on which the Senior Indebtedness to which such
Senior Nonmonetary Default relates is discharged or such Senior Nonmonetary
Default shall have been cured or waived in writing or shall have ceased to
exist and any acceleration of Senior Indebtedness to which such Senior
Nonmonetary Default relates shall have been rescinded or annulled and (ii) the
179th day after the date of such receipt of such written notice. No more than
one Payment Blockage Period may be commenced with respect to the Securities
during any period of 360 consecutive days and there shall be a period of at
least 181 consecutive days in each period of 360 consecutive days when no
Payment Blockage Period is in effect. Following the commencement of any
Payment Blockage Period, the holders of Senior Indebtedness shall be precluded
from commencing a subsequent Payment Blockage Period until the conditions set
forth in the preceding sentence shall have been satisfied. For all purposes of
this paragraph, no Senior Nonmonetary Default that existed or was continuing on
the date of commencement of any Payment Blockage Period with respect to the
Senior Indebtedness initiating such Payment Blockage Period shall be, or may be
made, the basis for the commencement of a subsequent Payment Blockage Period by
any holder of Senior Indebtedness or a Designated Senior Holder unless such
Senior Nonmonetary Default shall have been cured for a period of not less than
90 consecutive days. "Senior Nonmonetary Default" means any default (other
than a Senior Payment Default) or any event (other than a Senior Payment
Default) which, after notice or lapse of time (or both), would become an event
of default, under the terms of any instrument or agreement pursuant to which
any Senior Indebtedness is outstanding, permitting one or more holders of such
Senior Indebtedness or a
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Designated Senior Holder to declare such Senior Indebtedness due and payable
prior to the date on which it would otherwise become due and payable.
In the event that, notwithstanding the foregoing, the Company shall
make any Securities Payment to the Trustee or any Holder prohibited by the
foregoing provisions of this Section, then in such event such Securities
Payment shall be held in trust and paid over and delivered forthwith to the
Designated Senior Holders under the Senior Indebtedness or, if there is no
Designated Senior Holder with respect to such Senior Indebtedness, to the
holders of such Senior Indebtedness.
The provisions of this Section shall not apply to any Securities
Payment with respect to which Section 1302 hereof would be applicable.
SECTION 1304. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent the Company, at any time except during the
pendency of any Proceeding referred to in Section 1302 hereof or under the
conditions described in Section 1303 hereof, from making Securities Payments.
Nothing in this Article shall have any effect on the right of the Holders or
the Trustee to accelerate the maturity of the Securities upon the occurrence of
an Event of Default, but, in that event, no payment may be made in violation of
the provisions of this Article with respect to the Securities. If payment of
the Securities is accelerated because of an Event of Default, the Company shall
promptly notify the holders of the Senior Indebtedness (or their
representatives) of such acceleration.
SECTION 1305. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full in cash of all Senior Indebtedness, the
Holders of the Securities shall be subrogated to the rights of the holders of
such Senior Indebtedness to receive payments and distributions of cash,
property and securities applicable to the Senior Indebtedness until the
principal of, premium, if any, and interest (including Additional Interest) on
the Securities shall be paid in full. For purposes of such subrogation, no
payments or distributions to the holders of the Senior Indebtedness of any
cash, property or securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article, and no
payments pursuant to the provisions of this Article to the holders of Senior
Indebtedness by Holders of the Securities or the Trustee, shall, as among the
Company, its creditors other than holders of Senior Indebtedness and the
Holders of the Securities, be deemed to be a payment or distribution by the
Company to or on account of the Senior Indebtedness.
SECTION 1306. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders on the one hand and the
holders of Senior Indebtedness on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the
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Securities is intended to or shall (a) impair, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional
(and which, subject to the rights under this Article of the holders of Senior
Indebtedness, is intended to rank equally with all other general obligations of
the Company), to pay to the Holders of the Securities the principal of,
premium, if any, and interest (including Additional Interest) on the Securities
as and when the same shall become due and payable in accordance with their
terms; or (b) affect the relative rights against the Company of the Holders of
the Securities and creditors of the Company other than the holders of Senior
Indebtedness; or (c) prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article of the
holders of Senior Indebtedness to receive cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder or, under the
conditions specified in Section 1303, to prevent any payment prohibited by such
Section or enforce their rights pursuant to the penultimate paragraph in
Section 1303.
SECTION 1307. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes,
including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Company, whether in bankruptcy, insolvency, receivership
proceedings, or otherwise, the timely filing of a claim for the unpaid balance
of the indebtedness of the Company owing to such Holder in the form required in
such proceedings and the causing of such claim to be approved. If the Trustee
does not file a proper claim at least 30 days before the expiration of the time
to file such claim, then the holders of the Senior Indebtedness and their
agents, trustees or other representatives are authorized to do so (but shall in
no event be liable for any failure to do so) for and on behalf of the Holders
of the Securities.
SECTION 1308. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Indebtedness to
enforce the subordination provisions provided herein shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of the
Company or by any act or failure to act, in good faith, by any such holder, or
by any noncompliance by the Company with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof any such holder may have or
be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
or the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Indebtedness, or otherwise
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amend or supplement in any manner Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness is
outstanding; (ii) permit the Company to borrow, repay and then reborrow any or
all of the Senior Indebtedness; (iii) sell, exchange, release or otherwise deal
with any property pledged, mortgaged or otherwise securing Senior Indebtedness;
(iv) release any Person liable in any manner for the collection of Senior
Indebtedness; (v) exercise or refrain from exercising any rights against the
Company and any other Person; and (vi) apply any sums received by them to
Senior Indebtedness.
SECTION 1309. TRUST MONEYS NOT SUBORDINATED.
Notwithstanding anything contained herein to the contrary, payments
from money or the proceeds of Government Obligations held in trust by the
Trustee under Article Four, under Section 1010, or under a supplemental
indenture containing the provisions described in Section 901(i) for the payment
of the principal of, premium, if any, and interest (including Additional
Interest) on any series of Securities shall not be subordinated to the prior
payment of any Senior Indebtedness or subject to the restrictions set forth in
this Article, and no Holder of such Securities nor the Trustee shall be
obligated to pay over any such amount to the Company, any holder of Senior
Indebtedness, any Designated Senior Holder or any other creditor of the
Company.
SECTION 1310. NOTICE TO TRUSTEE.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company that would prohibit the making of any payment to or
by the Trustee in respect of the Securities or that would end such prohibition.
Notwithstanding the provisions of this Article or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts that which would prohibit the making of any payment to or by the
Trustee in respect of the Securities or that would end such prohibition, unless
and until a Responsible Officer of the Trustee assigned to its Corporate
Trustee Administration Department (or in the absence of such a department, any
Responsible Officer of the Trustee) shall have received written notice thereof
from the Company, any holder of Senior Indebtedness or any Designated Senior
Holder; and, prior to the receipt of any such written notice, the Trustee,
subject to the provisions of Section 601 hereof, shall be entitled in all
respects to assume that no such facts exist; provided, however, that, if prior
to the close of business on the Business Day immediately preceding the date
upon which by the terms hereof any monies become payable hereunder (including,
without limitation, the payment of either the principal of, premium, if any, or
interest on a Security), the Trustee or any Paying Agent shall not have
received with respect to such monies the notice provided for in this Section
1310, then, anything herein contained to the contrary notwithstanding, the
Trustee or such Paying Agent shall have full power and authority to receive
such monies and apply the same to the purpose for which they were received on
the date payment is due and, unless such payment is not made on that date,
shall not be affected by any notice to the contrary which may be received by it
on or after the date upon which such monies become due and payable. Any notice
required or permitted to be given to the Trustee by the Company, a holder of
Senior Indebtedness or any Designated Senior Holder shall be in writing and
shall be sufficient for every purpose
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hereunder if in writing and either (i) sent via facsimile to the Trustee to a
facsimile number provided by the Trustee, the receipt of which shall be
confirmed via telephone, or (ii) mailed, first class postage prepaid, or sent
by overnight carrier, to the Trustee addressed to it, attention of its
Corporate Trustee Administration Department, at the address of its principal
corporate trust office specified in the first paragraph of this Indenture or at
any other address furnished in writing to the Company, such holder of Senior
Indebtedness, or such Designated Senior Holder.
Subject to the provisions of Section 601 hereof, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness or Designated Senior
Holder to establish that such notice has been given by such holder of Senior
Indebtedness or Designated Senior Holder. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person representing himself to be a holder of Senior Indebtedness
or Designated Senior Holder to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, or if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
SECTION 1311. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 601 hereof,
and the Holders of the Securities shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which such Proceeding
is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or
to the Holders of Securities, for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of the
Senior Indebtedness, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article, provided that the foregoing shall apply only if such court has
been apprised of the provisions of this Article.
SECTION 1312. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS.
Subject to the provisions of Section 601, the Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness and
shall not be liable to any such holders if it shall in good faith mistakenly
pay over or distribute to Holders of Securities or to the Company or to any
other Person cash, property or securities to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article or otherwise.
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SECTION 1313. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607 hereof.
SECTION 1314. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee (or the
Company or an Affiliate of the Company) shall have been appointed by the
Company and be then acting hereunder, the term "Trustee" as used in this
Article shall in such case (unless the context otherwise requires) be construed
as extending to and including such Paying Agent within its meaning as fully for
all intents and purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee.
SECTION 1315. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON
SUBORDINATION PROVISIONS.
Each Holder by accepting a Security acknowledges and agrees that the
foregoing subordination provisions are, and are intended to be, an inducement
and a consideration to each holder of any Senior Indebtedness, whether such
Senior Indebtedness was created or acquired before or after the issuance of the
Securities, to acquire and continue to hold, or to continue to hold, such
Senior Indebtedness and such holder of Senior Indebtedness shall be deemed
conclusively to have relied on such subordination provisions in acquiring and
continuing to hold, or in continuing to hold, such Senior Indebtedness.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. APPLICABILITY OF ARTICLE.
If a supplemental indenture, Board Resolution or other instrument
authorizing a series of Securities pursuant to Section 301 provides that a
meeting of Holders of Securities of such series shall be called pursuant to
this Article to make, give or take any request, demand, authorization,
direction, notice, consent, approval, waiver or other action specified in such
supplemental indenture, Board Resolution or other instrument, then the
provisions of this Article shall be applicable except as otherwise specified in
such supplemental indenture, Board Resolution or other instrument.
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SECTION 1402. CALL, NOTICE AND PLACE OF MEETINGS.
(a) If a supplemental indenture, Board Resolution or other
instrument authorizing a series of Securities provides that the Trustee shall
call a meeting of the Holders of such Securities, then, upon the satisfaction
of any notice requirements or other conditions specified in such supplemental
indenture, Board Resolution or other instrument, the Trustee shall call a
meeting of Holders of Securities of such series for the purpose specified in
such supplemental indenture, Board Resolution or other instrument, to be held
at such time and at such place in the Borough of Manhattan, The City of New
York, or in such other place within the United States as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 10 nor more than 180 days prior to the
date fixed for the meeting.
(b) If the Trustee shall not have mailed the notice of such
meeting within 14 days after the date specified in such supplemental indenture,
Board Resolution or other instrument or shall not thereafter proceed to cause
the meeting to be held, then the Company or the Holders of at least 10% in
aggregate principal amount of the Outstanding Securities of such series, as the
case may be, may determine the time and the place in the Borough of Manhattan,
The City of New York, for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in subsection (a) of this
Section.
SECTION 1403. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (i) a Holder of one or more Outstanding Securities of
such series, or (ii) a Person appointed by an instrument in writing as proxy
for a Holder or Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders of Securities of any series shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 1404. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series; provided, however, that if any
action is to be taken at such meeting which the supplemental indenture, Board
Resolution or other instrument authorizing such series of Securities expressly
provides may be given by the Holders of not less than 66 2/3%, or a greater
percentage, in aggregate principal amount of the Outstanding Securities of such
series, then with respect to such action (and only such action), the Persons
entitled to vote 66 2/3%, or such greater percentage, in aggregate principal
amount of the Outstanding Securities of such series shall constitute a quorum.
In the absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10
days as determined by the chairman
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of the meeting prior to the adjournment of such adjourned meeting. Notice of
the reconvening of any adjourned meeting shall be given as provided in Section
1402(a), except that such notice shall be given not less than five days prior
to the date on which the meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Securities of such
series which shall constitute a quorum with respect to each action to be
considered at such meeting.
Any resolution presented to a meeting duly convened or an adjourned
meeting duly reconvened at which a quorum is present may be adopted only by the
affirmative vote of the Holders of the percentage in aggregate principal amount
of the Outstanding Securities of the applicable series specified in the
supplemental indenture, Board Resolution or other instrument authorizing such
series or herein as being required to take such action.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series, whether or not present
or represented at the meeting.
SECTION 1405. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETINGS.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of any series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1402(b), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each amount of the principal of
Outstanding Securities of such series held or represented by him equal to the
minimum authorized denomination of Securities of such series; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1402 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of such
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series represented at the meeting; and the meeting may be held as so adjourned
without further notice.
SECTION 1406. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1402 and, if
applicable, Section 1404. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 1501. NO RECOURSE AGAINST OTHERS.
An incorporator or any past, present or future director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or this Indenture or
for any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Holder shall waive and release all
such liability. Such waiver and release shall be part of the consideration for
the issue of the Securities.
SECTION 1502. SET-OFF.
Notwithstanding anything to the contrary in this Indenture or in any
Security of any series, prior to a Special Event Exchange with respect to a
series of Preferred Securities, the Company shall have the right to set-off and
apply against any payment it is otherwise required to make hereunder or
thereunder with respect to the principal of, premium, if any, or interest
(including any Additional Interest) on the Securities of such series with and
to the extent the Company has theretofore made, or is concurrently on the date
of such payment making, a payment with respect to the Preferred Securities of
the series related to such series of Securities under the applicable Guarantee
to provide funds to the applicable American General LLC to
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<PAGE> 92
pay dividends on, or the redemption price or liquidation preference of, such
series of Preferred Securities. Contemporaneously with, or as promptly as
practicable after, any such payment under such Guarantee to pay dividends on,
or the redemption price or the liquidation preference of, a series of Preferred
Securities, the Company shall deliver to the Trustee an Officers' Certificate
(upon which the Trustee shall be entitled to rely conclusively without any
requirement to investigate the facts contained therein) to the effect that such
payment has been made and that, as a result of such payment, the corresponding
payment under the related series of Securities has been set-off in accordance
with this Section 1502.
SECTION 1503. ASSIGNMENT; BINDING EFFECT.
The Company shall have the right at all times to assign any of its
rights or obligations under this Indenture to a direct or indirect wholly-owned
Subsidiary of the Company, provided that, in the event of any such assignment,
the Company shall remain primarily liable for the performance of all such
obligations. This Indenture may also be assigned by the Company in connection
with a transaction described in Article Eight. This Indenture shall be binding
upon and inure to the benefit of the Company, the Trustee, the Holders, any
Security Registrar, Paying Agent, and Authenticating Agent and, to the extent
specifically set forth herein, the holders of Senior Indebtedness and their
respective successors and assigns. The provisions of Section 903(a) (to the
extent relating to Preferred Securities), Section 1006 and Section 1007 are for
the benefit of the holders of the series of Preferred Securities referred to
therein and, prior to a Special Event Exchange with respect to such series, may
be enforced by such holders. A holder of a Preferred Security shall not have
the right, as such a holder, to enforce any other provision of this Indenture.
SECTION 1504. ADDITIONAL INTEREST.
Whenever there is mentioned in this Indenture, in any context, the
payment of the principal of, premium, if any, or interest on, or in respect of,
any Security of any series, such mention shall be deemed to include mention of
the payment of Additional Interest provided for by the terms of such series of
Securities to the extent that, in such context, Additional Interest is, were or
would be payable in respect thereof pursuant to such terms and express mention
of the payment of Additional Interest in any provisions hereof shall not be
construed as excluding Additional Interest in those provisions hereof where
such express mention is not made.
* * * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
AMERICAN GENERAL CORPORATION
[CORPORATE SEAL]
By: __________________________________
By: __________________________________
Attest:
_____________________________
CHEMICAL BANK
[CORPORATE SEAL]
By: __________________________________
__________________________________
Attest:
_____________________________
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<PAGE> 94
STATE OF TEXAS: )
)
COUNTY OF HARRIS: )
On the ____ day of ________________, 1995, before me
personally came _______________, to me known, who, being by me duly sworn, did
depose and say that he is _________________________________________________ of
AMERICAN GENERAL CORPORATION, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
________________________________________
Notary Public
STATE OF TEXAS: )
)
COUNTY OF HARRIS: )
On the ____ day of ________________, 1995, before me
personally came ________________, to me known, who, being by me duly sworn, did
depose and say that he is ____________________________ of AMERICAN GENERAL
CORPORATION, one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
________________________________________
Notary Public
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STATE OF NEW YORK: )
)
COUNTY OF NEW YORK: )
On the _____ day of _________________, 1995, before me
personally came _________________________, to me known, who, being by me duly
sworn, did depose and say that he resides at ___________________,
_________________; that he is a _______________________ of Chemical Bank, one
of the corporations described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
________________________________________
Notary Public
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<PAGE> 1
EXHIBIT 4(k)
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
AMERICAN GENERAL DELAWARE, L.L.C.
DATED AS OF MAY ___, 1995
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
ARTICLE I
DEFINED TERMS
<S> <C>
Section 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.2. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE II
CONTINUATION AND TERM; ADMISSION OF MEMBERS
Section 2.1. Continuation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.2. Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.3. Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.4. Registered Agent and Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.5. Principal Place of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.6. Qualification in Other Jurisdictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.7. Admission of Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.8. Merger, Consolidation, etc. of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE III
PURPOSE AND POWERS OF THE COMPANY
Section 3.1. Purpose and Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV
CAPITAL CONTRIBUTIONS, ALLOCATIONS AND DISTRIBUTIONS
Section 4.1. Form of Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 4.2. Contributions by the Common Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 4.3. Contributions by the Preferred Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 4.4. Investment Of Capital Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 4.5. Capital Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 4.6. General Allocations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 4.7. Special Allocations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 4.8. Allocations For Income Tax Purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 4.9. Withholding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 4.10. Allocation of Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 4.11. Interests as Personal Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
</TABLE>
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ARTICLE V
MEMBERS
<TABLE>
<S> <C>
Section 5.1. Powers of Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5.2. Partition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5.3. Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VI
MANAGEMENT
Section 6.1. Management of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6.2. Reliance by Third Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.3. No Management by any Preferred Members or American General . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.4. Preferred Members May Appoint a Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.5. Business Transactions of the Managing Member with the Company . . . . . . . . . . . . . . . . . . . . . . 18
Section 6.6. Outside Businesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VII
COMMON SECURITIES AND PREFERRED SECURITIES
Section 7.1. Common Securities and Preferred Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 7.2. Persons Deemed Preferred Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE VIII
VOTING AND MEETINGS
Section 8.1. Voting Rights of Holders of Preferred Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 8.2. Voting Rights of Holders of Common Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 8.3. Meetings of the Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE IX
DIVIDENDS
Section 9.1. Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 9.2. Limitations on Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 9.3. Certain Restrictions on the Payment of Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
</TABLE>
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ARTICLE X
BOOKS AND RECORDS
<TABLE>
<S> <C>
Section 10.1. Books and Records; Accounting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 10.2. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 10.3. Limitation on Access to Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE XI
TAX MATTERS
Section 11.1. Company Tax Returns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 11.2. Tax Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 11.3. Taxation as Partnership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE XII
EXPENSES
Section 12.1. Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE XIII
LIABILITY
Section 13.1. Liability of Common Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 13.2. Liability of Preferred Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE XIV
ASSIGNMENT OF INTERESTS
Section 14.1. Assignment of Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 14.2. Right of Assignee to Become a Member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 14.3. Events of Cessation of Membership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE XV
DISSOLUTION, LIQUIDATION AND TERMINATION
Section 15.1. No Dissolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 15.2. Events Causing Dissolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 15.3. Notice of Dissolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 15.4. Liquidation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 15.5. Certain Restrictions on Liquidation Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 15.6. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
</TABLE>
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<PAGE> 5
ARTICLE XVI
MISCELLANEOUS
<TABLE>
<S> <C>
Section 16.1. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 16.2. Successors; Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 16.3. Governing Law; Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 16.4. Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 16.5. Power of Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 16.6. Exculpation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 16.7. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 16.8. Additional Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 16.9. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
</TABLE>
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<PAGE> 6
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT OF
AMERICAN GENERAL DELAWARE, L.L.C.
This Amended and Restated Limited Liability Company Agreement of
American General Delaware, L.L.C. (the "Company") is made as of May ___, 1995,
among American General Corporation ("American General") and American General
Delaware Management Corporation ("American General Manager"), as current Members
(as defined below) of the Company and the Persons (as defined below) who become
Members of the Company in accordance with the provisions hereof.
WHEREAS, American General and American General Capital Services, Inc.
("AGCSI") have heretofore formed a limited liability company pursuant to the
Delaware Limited Liability Company Act. 6 Del. C. Section 18-101, et seq., as
amended from time to time (the "Delaware Act"), by filing a Certificate of
Formation of the Company with the office of the Secretary of State of the State
of Delaware on March 28, 1995, and entering into a Limited Liability Company
Agreement of the Company dated as of March 28, 1995 (the "Original Limited
Liability Company Agreement"); and
WHEREAS, on April 20, 1995, American General Manager was admitted as a
member of the Company; and
WHEREAS, on April 20, 1995, AGCSI resigned as a Member of the Company
and all of AGCSI's interest in the Company was redeemed and cancelled; and
WHEREAS, on April 20, 1995, American General and American General
Manager entered into the First Amendment to the Limited Liability Company
Agreement; and
WHEREAS, the Members desire to continue the Company as a limited
liability company under the Delaware Act and to amend and restate the Original
Limited Liability Company Agreement, as amended, in its entirety.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Members hereby amend and
restate the Original Limited Liability Company Agreement, as amended, in its
entirety and agree as follows:
<PAGE> 7
ARTICLE I
DEFINED TERMS
SECTION 1.1. DEFINITIONS. The terms defined in this Article I shall,
for the purposes of this Agreement, have the meanings herein specified.
"Additional Dividends" shall have the meaning, if any, set
forth in the Preferred Securities Designation with respect to a series of
Preferred Securities. Such term shall apply to a series of Preferred Securities
only if and to the extent set forth in the related Preferred Securities
Designation.
"Adjusted Capital Account" means the Capital Account
established for a Member, as the same is specially computed to reflect the
adjustments required or permitted by the Treasury Regulations under Section
704(b) of the Code to be taken into account in applying the second sentence of
section 1.704-1(b)(2)(ii)(d) of the Treasury Regulations.
"Affiliate" means with respect to a specified Person, any
Person that directly or indirectly controls, is controlled by, or is under
common control with, the specified Person. As used in this definition, the term
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a Person, whether
through ownership of voting securities, by contract or otherwise.
"Agreement" means this Amended and Restated Limited Liability
Company Agreement of the Company, as amended, modified, supplemented or restated
from time to time.
"American General Common Stock" means the Common Stock, par
value $.50 per share, of American General.
"American General Preferred Stock" means the Preferred Stock,
par value $1.50 per share, of American General.
"Capital Account" shall have the meaning set forth in Section
4.5.
"Certificate" means the Certificate of Formation referred to in
the first recital of this Agreement and any and all amendments thereto and
restatements thereof filed on behalf of the Company with the office of the
Secretary of State of the State of Delaware pursuant to the Delaware Act.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time, or any corresponding federal tax statute enacted after the date of
this Agreement. A reference to a specific section (Section) of the Code refers
not only to such specific section but also to any corresponding provision of any
federal tax statute enacted after the date of this Agreement, as such specific
section or corresponding provision is in effect on the date of application of
the provisions of this Agreement containing such reference.
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<PAGE> 8
"Common Member" means a Member that holds one or more Common
Securities.
"Common Securities" means the Interests in the Company which
represent common limited liability company interests in the Company and are
described in this Agreement.
"Company Distribution Account" shall have the meaning set forth
in Section 4.4 of this Agreement.
"Company Dividend Junior Securities" shall have the meaning set
forth in Section 9.3 of this Agreement.
"Company Dividend Parity Securities" shall have the meaning set
forth in Section 9.3 of this Agreement.
"Company Liquidation Parity Securities" shall have the meaning
set forth in Section 15.5 of this Agreement.
"Covered Person" means the Managing Member, any Affiliate of
the Managing Member or any officers, directors, managers, shareholders,
partners, members, employees, representatives or agents of the Managing Member,
or any employee or agent of the Company or its Affiliates.
"Debentures" means the Debentures evidencing the loans to
American General from the Company of substantially all of the Proceeds of the
issuances of Interests and related capital contributions.
"Dividend Payment Date" has the meaning set forth in Section
9.1(c) of this Agreement.
"Eligible Investment Account" means either (a) a segregated
account with an Eligible Institution or (b) a segregated trust account with the
corporate trust department of a depository institution organized under the laws
of the United States of America or any one of the states thereof or the District
of Columbia (or any domestic branch of a foreign bank), having corporate trust
powers and acting as trustee for funds deposited in such account, so long as any
of the securities of such depository institution shall have a credit rating from
each Rating Agency in one of its generic rating categories which signifies
investment grade.
"Eligible Institution" means (a) the Fiscal Agent or (b) a
depository institution organized under the laws of the United States of America
or any one of the states thereof or the District of Columbia (or any domestic
branch of a foreign bank), (1) (i) which has either (A) a long-term unsecured
debt rating of AAA or better by S&P and Aaa or better by Moody's or (B) a
short-term unsecured debt rating or a certificate of deposit rating of A-1+ or
better by S&P and P-1 or better by Moody's and (ii) whose deposits are insured
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<PAGE> 9
by the FDIC or (2) (i) the parent of which has a long-term or short-term
unsecured debt rating which signifies investment grade and (ii) whose deposits
are insured by the FDIC.
"Eligible Investments" mean book-entry securities, negotiable
instruments, cash or securities represented by instruments in bearer or
registered form which evidence:
(a) any security issued or guaranteed as to principal or
interest by the United States, or by a person controlled or supervised
by and acting as an instrumentality of the Government of the United
States pursuant to authority granted by the Congress of the United
States, or any certificate of deposit for any of the foregoing;
(b) commercial paper having, at the time of the investment or
contractual commitment to invest therein, a rating from each of S&P,
Moody's and, if rated by Fitch, Fitch in the highest investment rating
category granted thereby and having a maturity not in excess of nine
months;
(c) demand deposits, time deposits and certificates of deposit
which are fully insured by the FDIC;
(d) repurchase obligations with respect to any security that is
a direct obligation of, or fully guaranteed by, the Government of the
United States of America or any agency or instrumentality thereof, the
obligations of which are backed by the full faith and credit of the
United States of America, in either case entered into with a depository
institution or trust company which is an Eligible Institution and the
deposits of which are insured by the FDIC.
(e) any other security which is identified as a permitted
investment of a finance subsidiary pursuant to Rule 3a-5 under the
Investment Company Act of 1940, as amended, at the time it is acquired
by the Company.
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"Fiscal Period" means a calendar month.
"Fitch" means Fitch Investors Service, Inc. or any successor
thereto.
"Guarantee" means the Guarantee Agreement to be entered into by
American General for the benefit of the Preferred Members, as amended from time
to time.
"Indemnified Person" means each Common Member, any Affiliate of
such Common Member or any officers, directors, managers, shareholders, partners,
members, employees, representatives or agents of such Common Member, or any
employee or agent of the Company or its Affiliates.
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<PAGE> 10
"Indenture" means the Indenture dated as of May ___, 1995,
between American General and Chemical Bank, as trustee, pursuant to which the
Debentures will be issued, as amended, modified or supplemented from time to
time.
"Interest" means a limited liability company interest in the
Company, including the right of the holder thereof to any and all benefits to
which a Member may be entitled as provided in this Agreement, together with the
obligations of a Member to comply with all of the terms and provisions of this
Agreement.
"Liquidation Distribution" shall have the meaning set forth in
Section 15.5 of this Agreement.
"LP Act" means the Delaware Revised Uniform Limited Partnership
Act. 6 Del C. Section 17-101, et seq., as amended from time to time.
"Majority [Or Other Stated Percentage] in Liquidation
Preference" means Preferred Members who are the record owners of Preferred
Securities whose aggregate liquidation preferences represent more than 50% or
not less than such stated percentage of the aggregate liquidation preference of
all Preferred Securities of any particular series or all series, as the context
requires, then outstanding.
"Managing Member" means American General Manager, in its
capacity as the manager of the Company and as a Member that holds Common
Securities.
"Member" means any Person that holds an Interest in the Company
and is admitted as a member of the Company pursuant to the provisions of this
Agreement, in its capacity as a member of the Company. For purposes of the
Delaware Act, the Common Members and the Preferred Members shall constitute
separate classes or groups of Members.
"Moody's" means Moody's Investors Service, Inc. or any
successor thereto.
"Net Income" and "Net Loss", respectively, for any Fiscal
Period means the income and loss, respectively, of the Company for such Fiscal
Period as determined in accordance with the method of accounting followed by the
Company for federal income tax purposes, including, for all purposes, any
tax-exempt income and any expenditures of the Company which are described in
Section 705(a)(2)(B) of the Code (or treated as so described under Section
1.704-1(b)(2)(iv)(i) of the Treasury Regulations); provided, however, that any
item allocated under Section 4.7 shall be excluded from the computation of Net
Income and Net Loss.
"Person" means any individual, corporation, association,
partnership (general or limited), joint venture, trust, estate, limited
liability company, or other legal entity or organization.
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<PAGE> 11
"Preferred Certificate" means a certificate evidencing the
Preferred Securities held by a Preferred Member.
"Preferred Member" means a Member that holds one or more
Preferred Securities.
"Preferred Securities" means the Interests which represent
preferred limited liability company interests in the Company and are described
in this Agreement.
"Preferred Securities Designation" means any written action of
the Managing Member pursuant to Section 7.1(b) of this Agreement providing for
the issue of a series of Preferred Securities.
"Rating Agencies" means Fitch, Moody's and S&P.
"S&P" means Standard & Poor's Ratings Group or any successor
thereof.
"Tax Matters Partner" means the Managing Member designated as
such in Section 11.1(b) of this Agreement.
"Third Party Creditors" shall have the meaning set forth in
Section 13.1 of this Agreement.
SECTION 1.2. HEADINGS. The headings and subheadings in this Agreement
are included for convenience and identification only and are in no way intended
to describe, interpret, define or limit the scope, extent or intent of this
Agreement or any provision hereof.
ARTICLE II
CONTINUATION AND TERM; ADMISSION OF MEMBERS
SECTION 2.1. CONTINUATION.
(a) The Members hereby agree to continue the Company as a
limited liability company under and pursuant to the provisions of the Delaware
Act and agree that the rights, duties and liabilities of the Members shall be as
provided in the Delaware Act, except as otherwise provided herein.
(b) Upon the execution of this Agreement, American General and
American General Manager shall continue to be Members and shall each be
designated as a Common Member and shall together be the holders of all of the
Common Securities.
(c) The Managing Member, as an authorized person within the
meaning of the Delaware Act, shall execute, deliver and file any and all
amendments to and restatements of the Certificate.
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<PAGE> 12
SECTION 2.2. NAME. The name of the Company heretofore formed and
continued hereby is American General Delaware, L.L.C. The business of the
Company may be conducted upon compliance with all applicable laws under any
other name designated by the Managing Member.
SECTION 2.3. TERM. The term of the Company commenced on the date the
Certificate was filed in the office of the Secretary of State of the State of
Delaware and shall continue until December 31, 2050, unless dissolved before
such date in accordance with the provisions of this Agreement.
SECTION 2.4. REGISTERED AGENT AND OFFICE. The Company's registered
agent and office in Delaware shall be The Corporation Trust Company, 1209 Orange
Street, Wilmington, New Castle County, Delaware 19801. At any time, the Managing
Member may designate another registered agent and/or registered office.
SECTION 2.5. PRINCIPAL PLACE OF BUSINESS. The principal place of
business of the Company shall be at 2590 American General Center, Nashville,
Tennessee 37250. The Managing Member may change the location of the Company's
principal place of business.
SECTION 2.6. QUALIFICATION IN OTHER JURISDICTIONS. The Managing Member
shall cause the Company to be qualified, formed or registered under assumed or
fictitious name statutes or similar laws in any jurisdiction in which the
Company conducts business and in which such qualification, formation or
registration is required by law or deemed advisable by the Managing Member. The
Managing Member, as an authorized person within the meaning of the Delaware Act,
shall execute, deliver and file any certificates (and any amendments and/or
restatements thereof) necessary for the Company to qualify to do business in a
jurisdiction in which the Company may wish to conduct business.
SECTION 2.7. ADMISSION OF MEMBERS.
(a) Subject to Section 2.1(b) of this Agreement, a Person shall
be admitted as a Member and shall become bound by the terms of this Agreement,
without execution of this Agreement, if such Person (or a representative
authorized by such Person orally, in writing or by other action such as payment
for an Interest) complies with the conditions for becoming a Member as set forth
in Section 2.7(b) and requests (which request shall be deemed to have been made
upon acquisition of an Interest directly from the Company or upon an assignment
of an Interest from another Person) that the records of the Company reflect such
admission. The Company shall be promptly notified of any assignment of an
Interest.
The Company will reflect the admission of a Member in the
records of the Company as soon as is reasonably practicable after either of the
following events: (i) in the case of a Person acquiring an Interest directly
from the Company, at the time of payment therefor, and (ii) in the case of an
assignment, upon notification thereof (the Company being entitled to assume, in
the absence of knowledge to the contrary, that proper payment has been made by
the assignee).
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<PAGE> 13
(b) Subject to the restrictions on transfer of Common
Securities set forth in Sections 7.1(e) and 14.1 of this Agreement, whether
acquiring an Interest directly from the Company or by assignment, a Person shall
be admitted as a Member upon the acquisition or assignment, as the case may be,
of such Interest and the reflection of such Person's admission as a Member on
the registration books maintained by or on behalf of the Company. The consent of
any other Member shall not be required for the admission of a Member.
SECTION 2.8. MERGER, CONSOLIDATION, ETC. OF THE COMPANY. The Company
may not consolidate with, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets as an entirety or substantially as
an entirety to any Person, except with the prior approval of Preferred Members
holding not less than 66-2/3% in Liquidation Preference of the outstanding
Preferred Securities of each series or except as set forth in this Section 2.8.
The Company may, without the consent of Preferred Members, consolidate with,
merge with or into, or be replaced by, or convey, transfer or lease its assets
as an entirety or substantially as an entirety to, a limited liability company,
limited partnership or trust organized as such under the laws of any state of
the United States of America or the District of Columbia, provided that (i) such
successor entity either (x) expressly assumes all of the obligations of the
Company under the Preferred Securities or (y) substitutes for the Preferred
Securities of each series other securities having substantially the same terms
as such Preferred Securities of each series (the "Successor Securities") so long
as the Successor Securities rank, with respect to participation in the profits
or assets of the successor entity, at least as high as the Preferred Securities
of the related series rank with respect to payment of dividends and distribution
of assets upon the liquidation, dissolution or winding-up of the Company, (ii)
American General expressly acknowledges such successor entity as the holder of
Debentures relating to such Preferred Securities and its obligations under the
Guarantee with respect to the Successor Securities, (iii) such merger,
consolidation, replacement, conveyance, transfer or lease does not cause the
Preferred Securities or the Successor Securities, if any, to be delisted (or, in
the case of any Successor Securities, to fail to be listed) by any national
securities exchange or other organization on which such Preferred Securities are
then listed, (iv) such merger, consolidation, replacement, conveyance, transfer
or lease does not cause the Preferred Securities or Successor Securities, if
any, to be downgraded by any "nationally recognized statistical rating
organization," as that term is defined by the Securities and Exchange Commission
for purposes of Rule 436(g)(2) under the Securities Act of 1933, as amended, (v)
such merger, consolidation, replacement, conveyance, transfer or lease does not
adversely affect the powers, preferences and other special rights of Preferred
Members or the holders of the Successor Securities, if any, in any material
respect (other than with respect to any dilution of the holders' interest in the
new entity) and (vi) prior to such merger, consolidation, replacement,
conveyance, transfer or lease, American General has received an opinion of
nationally recognized independent legal counsel to the Company experienced in
such matters to the effect that (x) such successor entity will be treated as a
partnership or as a grantor trust, as appropriate, for federal income tax
purposes, (y) following such merger, consolidation, replacement, conveyance,
transfer or lease, American General and such successor entity will be in
compliance with the Investment Company Act of 1940, as amended, without
registering thereunder as an investment company and (z) such merger,
consolidation, replacement, conveyance, transfer
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<PAGE> 14
or lease will not adversely affect the limited liability of the Preferred
Members or the holders of the Successor Securities, if any, or result in federal
income tax liability to such Preferred Members or holders other than with
respect to any fractional share interests converted into cash.
ARTICLE III
PURPOSE AND POWERS OF THE COMPANY
SECTION 3.1. PURPOSE AND POWERS. The purposes of the Company are (a) to
issue Interests and to use substantially all of the proceeds from the issuance
thereof and the related capital contributions to purchase Debentures from
American General, (b) to invest, at all times, at least 1% of such proceeds and
capital contributions in the Eligible Investment Account as provided herein and
(c) except as otherwise limited herein, to enter into, make and perform all
contracts and other undertakings, and to take any and all actions necessary,
appropriate, proper, advisable, incidental or convenient to or for the
furtherance of the purpose of the Company as set forth herein. The Company may
not conduct any other business or operations except as contemplated by the
preceding sentence.
ARTICLE IV
CAPITAL CONTRIBUTIONS, ALLOCATIONS AND DISTRIBUTIONS
SECTION 4.1. FORM OF CONTRIBUTION. The contribution of a Member to the
Company may, as determined by the Managing Member in its discretion, be in cash,
a promissory note or other legal consideration.
SECTION 4.2. CONTRIBUTIONS BY THE COMMON MEMBERS. The Common Members
shall make such contributions to the Company, either in connection with the
purchase of Common Securities or otherwise, so as to cause their Common
Securities to be entitled to at least 21% of all interests in the capital,
income, gain, loss, deduction and credit of the Company at all times.
SECTION 4.3. CONTRIBUTIONS BY THE PREFERRED MEMBERS. The Preferred
Members shall make contributions to the Company in accordance with the
applicable terms of Section 7.1 of this Agreement. Preferred Members, in their
capacity as Members of the Company, shall not be required to make any additional
contributions to the Company and shall have no additional liability solely by
reason of being Preferred Members in excess of their share of the Company's
assets and undistributed profits (subject to their obligation to return
distributions wrongfully distributed to them as required by applicable law).
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<PAGE> 15
SECTION 4.4. INVESTMENT OF CAPITAL CONTRIBUTIONS.
(a) The Managing Member shall establish and maintain in the
name of the Company an Eligible Investment Account bearing a
designation clearly indicating that the funds deposited therein are
held for the benefit of the Company. The Managing Member shall deposit
from the proceeds of the aggregate capital contributions received from
the Members, upon their receipt thereof, an amount equal to at least 1%
of such aggregate capital contributions into the Eligible Investment
Account.
(b) Funds on deposit in the Eligible Investment Account shall
be invested by the Managing Member; provided, however, it is understood
and agreed that the Managing Member shall not be liable for any loss
arising from such investment in Eligible Investments; provided,
further, that none of the funds deposited in the Eligible Investment
Account shall be invested in an Eligible Investment or Eligible
Investments issued by American General or an Affiliate thereof for a
period of five years following the Closing Date. All such Eligible
Investments shall be held by the Managing Member for the benefit of the
Company, provided, however, that on the day preceding each Dividend
Payment Date all interest and other investment income (net of losses
and investment expenses) on funds on deposit in the Eligible Investment
Account shall be deposited into the account maintained by the Company
for receipt of income on the Debentures (the "Company Distribution
Account") and shall constitute a portion of the Company's Net Income
eligible for distribution to the Members. Funds on deposit in the
Eligible Investment Account shall be invested in Eligible Investments
that will mature prior to the next succeeding Dividend Payment Date.
SECTION 4.5. CAPITAL ACCOUNTS. An individual capital account (a
"Capital Account") shall be established and maintained on the books of the
Company for each Member in compliance with Treasury Regulation Sections
1.704-1(b)(2)(iv) and 1.704-2, as amended. Subject to the preceding sentence,
each Capital Account will be increased by the amount of the capital
contributions made by, and the Net Income allocated to, such Member and reduced
by the amount of distributions made by the Company, and Net Losses allocated to
the Member. In addition, a Member's Capital Account shall be increased or
decreased, as the case may be, for any items specially allocated to such Member
under Section 4.7 of this Agreement, and a Common Member's Capital Account shall
be increased to the extent that such Common Member pays any costs or expenses of
the Company directly out of such Common Member's own funds.
SECTION 4.6. GENERAL ALLOCATIONS. After giving effect to the special
allocations set forth in Section 4.7 of this Agreement:
(a) The Company's Net Income for each Fiscal Period shall be
allocated, as of the close of business on the record date for such
Fiscal Period, as follows:
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<PAGE> 16
(i) First, to each Preferred Member, in an amount
equal to the excess of (x) the amount of all Dividends
(including Additional Dividends) accrued on such Preferred
Member's Preferred Securities from the issuance of such
Preferred Securities through the close of business on the
record date for such Fiscal Period, over (y) the amount of Net
Income allocated to such Preferred Member (and his predecessors
in interest) in respect of such Preferred Securities pursuant
to this Section 4.6(a)(i) (and amounts, if any, allocated
pursuant to Section 4.7(j) of this Agreement) for all prior
Fiscal Periods.
(ii) Second, to each Preferred Member, in an amount
equal to the excess of (x) the amount of all Net Losses
allocated to such Preferred Member from the date of issuance of
such Preferred Member's Preferred Securities through the close
of business on the record date for such Fiscal Period pursuant
to Section 4.6(b)(ii) over (y) the amount of Net Income
allocated to such Preferred Member (and his predecessors in
interest) in respect of such Preferred Securities pursuant to
this Section 4.6(a)(ii) for all prior Fiscal Periods.
(iii) Any remaining Net Income shall be allocated to
the Common Members, and shared among them in the ratio in which
the Common Members have made contributions to the Company
pursuant to Section 4.2 of this Agreement.
(b) The Company's Net Loss for each Fiscal Period shall be
allocated, as of the close of business on the record date for such
Fiscal Period, as follows:
(i) First, to the Common Members (in the ratio in
which the Common Members have made contributions to the Company
pursuant to Section 4.2 of this Agreement) until the balance of
each Common Member's Adjusted Capital Account is reduced to
zero.
(ii) Second, to the Preferred Members (in proportion
to their respective aggregate Adjusted Capital Account
balances) until their Adjusted Capital Account balances are
reduced to zero.
(iii) Any remaining Net Loss shall be allocated to the
Common Members and shared among them in the ratio in which the
Common Members have made contributions to the Company pursuant
to Section 4.2 of this Agreement.
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<PAGE> 17
(c) The Managing Member may make such changes to the
allocations in Sections 4.6(a) and 4.6(b) as it deems reasonably
necessary so that, immediately prior to the Company's liquidation (or
the exchange of Preferred Securities for a portion of the Debentures),
the positive balances in the Capital Accounts of the Preferred Members
shall, to the maximum extent possible, equal their respective
Liquidation Distributions.
SECTION 4.7. SPECIAL ALLOCATIONS.
(a) If a Preferred Member delivers a Notice of Conversion to
the Conversion Agent pursuant to the appropriate Preferred Securities
Designation, which instructs the Conversion Agent to exchange Preferred
Securities of a series for a portion of the Debentures of the related
series held by the Company and to immediately thereafter convert such
Debentures into American General Common Stock, such Preferred Member
shall be allocated any interest income (including original issue
discount) accruing on a daily basis on the Debentures so converted
until the date of such conversion, but only to the extent such interest
income was not previously allocated to the Members in a prior Fiscal
Period under Section 4.6 of this Agreement or this Section 4.7.
(b) If the Conversion Agent exchanges all of the Preferred
Securities of a series for a portion of the Debentures of the related
series held by the Company and immediately thereafter exchanges such
Debentures for American General Preferred Stock of the related series,
pursuant to the appropriate Preferred Securities Designation, the
Preferred Members of such series shall be allocated (in proportion to
the liquidation preferences of such Preferred Securities held by each
such Preferred Member) any interest income (including original issue
discount) accruing on a daily basis on the Debentures so exchanged
until the date of such exchange, but only to the extent such interest
income was not previously allocated to the Members in prior Fiscal
Periods under Section 4.6 of this Agreement or this Section 4.7.
(c) If the Conversion Agent exchanges all of the Preferred
Securities of any series for a portion of the Debentures of the related
series held by the Company and distributes such Debentures to the
Preferred Members pursuant to the appropriate Preferred Securities
Designation, such Preferred Members shall be allocated (in proportion
to the liquidation preferences of such Preferred Securities held by
each such Preferred Member) any interest income (including original
issue discount) accruing on a daily basis on the Debentures so
distributed until the date of such distribution, but only to the extent
such interest income was not previously allocated to the Members in
prior Fiscal Periods under Section 4.6 of this Agreement or this
Section 4.7.
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(d) If the Company receives a prepayment premium upon a
prepayment of some or all of the Debentures of any series, income, gain
or loss recognized by the Company from such prepayment shall be
allocated to the Preferred Members whose related Preferred Securities
are redeemed pursuant to the appropriate Preferred Securities
Designation as a result of such prepayment (in proportion to the
liquidation preferences of such Preferred Securities held by each such
Preferred Member).
(e) If the Company is deemed to receive a dividend under
Section 305(c) of the Code with respect to any series of Debentures,
the Preferred Members holding Preferred Securities of the related
series shall be allocated (in proportion to the liquidation preferences
of such Preferred Securities held by each such Preferred Member) that
portion of such dividend income which is allocable to the portion of
such series of Debentures having an aggregate principal amount equal to
the aggregate liquidation preference of such Preferred Securities; the
balance of such dividend income shall be allocated to the Common
Members and shared among them in the ratio in which the Common Members
have made contributions to the Company pursuant to Section 4.2 of this
Agreement in connection with such Preferred Securities.
(f) All items of loss and deduction in respect of expenses
incurred by or on behalf of the Company and paid by a Common Member (or
out of such Common Member's share of distributions) shall be allocated
entirely to the Common Member which pays such expenses.
(g) For purposes of determining the Net Income, Net Loss or any
other items allocable to any Fiscal Period, Net Income, Net Loss and
any such other items shall be determined on a daily, monthly or other
basis, as determined by the Managing Member using any method that is
permissible under Section 706 of the Code and the Treasury Regulations
promulgated thereunder. Unless otherwise specified, such Net Income,
Net Loss or other items shall be determined for each Fiscal Period.
(h) Notwithstanding anything to the contrary that may be
expressed or implied in this Article IV, the interest of the Common
Members, in the aggregate, in each item of income, gain, loss,
deduction and credit will be equal to at least (i) at any time that
aggregate capital contributions to the Company are equal to or less
than $50,000,000, 1% of each such item and (ii) at any time that
aggregate capital contributions to the Company are greater than
$50,000,000, at least 1% multiplied by a fraction (not exceeding one
and not less than 0.2), the numerator of which is $50,000,000 and the
denominator of which is the lesser of the aggregate balances of the
Capital Accounts of all Members at such time and the aggregate capital
contributions to the Company of all Members at such time.
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(i) The Members intend that the allocations under Section 4.6
of this Agreement and this Section 4.7 conform to Treasury Regulations
Sections 1.704-1(b) and 1.704-2 (including, without limitation and to
the extent applicable, the minimum gain chargeback, chargeback of
partner nonrecourse debt minimum gain, qualified income offset and
partner nonrecourse debt provisions of such Treasury Regulations), and
the Managing Member shall make such allocations under this Section 4.7,
or such changes in the allocations under Section 4.6 of this Agreement,
as it believes are reasonably necessary to meet all applicable
requirements of such Treasury Regulations.
(j) In the event that, for any Fiscal Period, the Company is
required to recognize income in respect of original issue discount on a
series of Debentures in excess of the aggregate Dividends (including
Additional Dividends) accrued for such Fiscal Period in respect of the
related series of Preferred Securities, such excess income shall be
allocated to the Members in the same ratio as Net Income is allocated
under Section 4.6 (a) of this Agreement.
SECTION 4.8. ALLOCATIONS FOR INCOME TAX PURPOSES. The income, gains,
losses, deductions and credits of the Company shall be allocated in the same
manner as the items entering into the computation of Net Income and Net Loss are
allocated under Section 4.6 of this Agreement or as such items are otherwise
allocated under Section 4.7 of this Agreement; provided, however, that solely
for federal, state and local income and franchise tax purposes, but not for book
or Capital Account purposes, income, gain, loss and deductions with respect to
any property properly carried on the Company's books at a value other than the
tax basis of such property shall be allocated in a manner determined in the
Managing Member's discretion, so as to take into account (consistently with the
principles of Section 704(c) of the Code) the difference between such property's
book value and its tax basis.
SECTION 4.9. WITHHOLDING. The Company shall comply with withholding
requirements under federal, state and local law and shall remit amounts withheld
to and file required forms with applicable jurisdictions. To the extent that the
Company is required to withhold and pay over any amounts to any authority with
respect to distributions or allocations to any Member, the amount withheld shall
be deemed to be a distribution in the amount of the withholding to the Member.
In the event of any claimed over-withholding, Members shall be limited to an
action against the applicable jurisdiction. If the amount withheld was not
withheld from actual distributions, the Company may reduce subsequent
distributions by the amount of such withholding. Each Member agrees to furnish
the Company with such representations and forms as shall reasonably be requested
by the Company to assist it in determining the extent of, and in fulfilling, its
withholding obligations.
SECTION 4.10. ALLOCATION OF DISTRIBUTIONS. The distributions of
the Company shall, subject to the applicable terms of Sections 7.1, 9.1, 9.2,
9.3, 15.4 and 15.5 of this Agreement and of any series of Preferred Securities
(including the preferential allocation of distributions, if any), be allocated
entirely to the Common Members.
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SECTION 4.11. INTERESTS AS PERSONAL PROPERTY. Each Member
hereby agrees that its Interest shall for all purposes be personal property. A
Member has no interest in specific Company property.
ARTICLE V
MEMBERS
SECTION 5.1. POWERS OF MEMBERS. The Members shall have the power to
exercise any and all rights or powers granted to the Members pursuant to the
express terms of this Agreement.
SECTION 5.2. PARTITION. Each Member waives any and all rights that it
may have to maintain an action for partition of the Company's property.
SECTION 5.3. RESIGNATION. The Common Members shall have no right to
resign from the Company. Any other Member may resign from the Company prior to
the liquidation, dissolution and winding up of the Company only upon the
assignment of its Interest (including any redemption, repurchase, exchange or
other acquisition by the Company of such Interest) in accordance with the
provisions of this Agreement. A resigning Member shall not be entitled to
receive any distribution and shall not otherwise be entitled to receive the fair
value of its Interest except as otherwise expressly provided for in this
Agreement.
ARTICLE VI
MANAGEMENT
SECTION 6.1. MANAGEMENT OF THE COMPANY. Except as otherwise provided
herein, the business and affairs of the Company shall be managed, and all
actions required under this Agreement shall be determined, solely and
exclusively by the Managing Member, which shall have all rights and powers on
behalf and in the name of the Company to perform all acts necessary and
desirable to the objects and purposes of the Company. Without limiting the
generality of the foregoing, the Managing Member, in its capacity as a Common
Member and not by virtue of any delegation of management power from any Member,
shall have the power on behalf of the Company to:
(a) authorize and engage in transactions and dealings on behalf
of the Company, including transactions and dealings with any Member
(including any Common Member) or any Affiliate of any Member;
(b) call meetings of Members or any class or series thereof;
(c) issue Interests, including Common Securities, Preferred
Securities and classes and series thereof, in accordance with this
Agreement;
(d) pay all expenses incurred in forming the Company;
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(e) lend money, with or without security, to American General
or any Affiliate thereof;
(f) determine and make distributions (hereinafter sometimes
referred to as "dividends"), in cash or otherwise, on Interests, in
accordance with the provisions of this Agreement, the Delaware Act and,
if applicable, each Preferred Securities Designation;
(g) establish a record date with respect to all actions to be
taken hereunder that require a record date to be established, including
with respect to allocations, dividends and voting rights;
(h) establish or set aside in their discretion any reserve or
reserves for contingencies and for any other proper Company purpose;
(i) redeem, repurchase or exchange, on behalf of the Company,
Interests which may be so redeemed, repurchased or exchanged;
(j) appoint (and dismiss from appointment) attorneys and agents
on behalf of the Company, and employ (and dismiss from employment) any
and all persons providing legal, accounting or financial services to
the Company, or such other employees or agents as the Managing Member
deems necessary or desirable for the management and operation of the
Company, including, without limitation, any Member (including any
Common Member) or any Affiliate of any Member;
(k) incur and pay all expenses and obligations incident to the
operation and management of the Company, including, without limitation,
the services referred to in the preceding paragraph, taxes, interest,
travel, rent, insurance, supplies, salaries and wages of the Company's
employees and agents;
(l) acquire and enter into any contract of insurance necessary
or desirable for the protection or conservation of the Company and its
assets or otherwise in the interest of the Company as the Managing
Member shall determine;
(m) open accounts and deposit, maintain and withdraw funds in
the name of the Company in banks, savings and loan associations,
brokerage firms or other financial institutions;
(n) effect a dissolution of the Company and act as liquidating
trustee or the Person winding up the Company's affairs, all in
accordance with the provisions of this Agreement, the Delaware Act and,
if applicable, each Preferred Securities Designation;
(o) bring and defend on behalf of the Company actions and
proceedings at law or equity before any court or governmental,
administrative or other regulatory agency, body or commission or
otherwise;
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(p) prepare and cause to be prepared reports, statements and
other relevant information for distribution to Members as may be
required or determined to be necessary or desirable by the Managing
Member from time to time;
(q) prepare and file all necessary returns and statements and
pay all taxes, assessments and other impositions applicable to the
assets of the Company; and
(r) execute all other documents or instruments, perform all
duties and powers and do all things for and on behalf of the Company in
all matters necessary or desirable or incidental to the foregoing.
The Managing Member is authorized and directed to conduct its
affairs and to operate the Company in such a way that the Company will not be
deemed to be an "investment company" required to be registered under the
Investment Company Act of 1940, as amended, or taxed as a corporation for
federal income tax purposes and so that the Preferred Securities of any series
will be treated as indebtedness of American General for federal income tax
purposes. In this connection, the Managing Member is authorized to take any
action not inconsistent with applicable law, this Agreement and the applicable
Preferred Securities Designation and that the Managing Member determines in its
discretion to be necessary or desirable for such purposes.
The expression of any power or authority of the Managing Member
in this Agreement shall not in any way limit or exclude any other power or
authority which is not specifically or expressly set forth in this Agreement.
SECTION 6.2. RELIANCE BY THIRD PARTIES. Persons dealing with the
Company are entitled to rely conclusively upon the power and authority of the
Managing Member herein set forth.
SECTION 6.3. NO MANAGEMENT BY ANY PREFERRED MEMBERS OR AMERICAN
GENERAL. Except as otherwise expressly provided herein, no Preferred Member
shall take part in the day-to-day management, operation or control of the
business and affairs of the Company. Neither the Preferred Members, in their
capacity as Preferred Members of the Company, nor American General, in its
capacity as a Common Member, shall be agents of the Company or have any right,
power or authority to transact any business in the name of the Company or to act
for or on behalf of or to bind the Company.
SECTION 6.4. PREFERRED MEMBERS MAY APPOINT A TRUSTEE. Subject to the
terms and conditions set forth in Section 8.1(b) of this Agreement, the
Preferred Members of each series of Preferred Securities shall have the right to
appoint a trustee, and any trustee so appointed shall have the power to enforce
the Company's rights under the Debentures of the related series against American
General, enforce the obligations undertaken with respect to such Preferred
Securities by American General under the Guarantee and, to the extent permitted
by law, declare and pay dividends on such Preferred Securities to the extent
funds of the Company are legally available therefor. Without limiting the powers
of any trustee so appointed and for the avoidance of any doubt concerning the
powers of the
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trustee, any trustee, in its own name and as trustee of an express trust, may
institute a proceeding, including, without limitation, any suit in equity, an
action at law or other judicial or administrative proceeding, to enforce the
Company's creditor rights directly against American General to the same extent
as the Company and on behalf of the Company, and may prosecute such proceeding
to judgment or final decree, and enforce the same against American General and
collect, out of the property, wherever situated, of American General, the monies
adjudged or decreed to be payable in the manner provided by law. The Managing
Member agrees to execute and deliver such documents as may be necessary or
appropriate for the trustee to exercise such powers.
SECTION 6.5. BUSINESS TRANSACTIONS OF THE MANAGING MEMBER WITH THE
COMPANY. The Managing Member or its Affiliates may lend money to, borrow money
from, act as surety, guarantor or endorser for, guarantee or assume one or more
obligations of, provide collateral for, and transact other business with, the
Company and, subject to applicable law, shall have the same rights and
obligations with respect to any such matter as a Person who is not the Managing
Member or an Affiliate thereof.
SECTION 6.6. OUTSIDE BUSINESSES. Any Member or Affiliate thereof may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business
of the Company, and the Company and the Members shall have no rights by virtue
of this Agreement in and to such independent ventures or the income or profits
derived therefrom, and the pursuit of any such venture, even if competitive with
the business of the Company, shall not be deemed wrongful or improper. No Member
or Affiliate thereof shall be obligated to present any particular investment
opportunity to the Company even if such opportunity is of a character that, if
presented to the Company, could be taken by the Company, and any Member or
Affiliate thereof shall have the right to take for its own account (individually
or as a partner or fiduciary) or to recommend to others any such particular
investment opportunity.
ARTICLE VII
COMMON SECURITIES AND PREFERRED SECURITIES
SECTION 7.1. COMMON SECURITIES AND PREFERRED SECURITIES.
(a) The Interests in the Company shall initially be divided
into two classes, Common Securities and Preferred Securities.
(b) The Preferred Securities may be issued from time to time in
one or more series with such relative rights, powers, preferences, limitations
and restrictions as may from time to time be established in a written action or
actions of the Managing Member providing for the issue of such series of
Preferred Securities as hereinafter provided. Authority is hereby expressly
granted to the Managing Member, subject to the provisions of this Agreement, to
authorize the issue of one or more series of Preferred Securities and to
establish each such series by a written action or actions (including without
limitation an amendment of this Agreement) providing for the issue of such
series:
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(i) the number of Preferred Securities to constitute such
series and the distinctive designation thereof;
(ii) whether the Preferred Securities of such series shall have
voting rights in addition to those set forth in this Agreement or
required by law and, if so, the terms of such voting rights;
(iii) the annual dividend rate (or method of calculation
thereof), if any, on the Preferred Securities of such series, the
conditions and dates upon which such dividends shall be payable and the
ability of the Company, if any, to defer the dividend payment period
for the Preferred Securities of such series, the dates from which such
dividends shall accrue, the preference or relation, if other than pari
passu, which such dividends have with respect to dividends payable on
any other class or classes of Interests or on any other series of
Preferred Securities, and whether such dividends shall be cumulative or
noncumulative;
(iv) whether the Preferred Securities of such series shall be
subject to redemption by the Company, and, if made subject to
redemption, the times and other terms and conditions of such redemption
(including the mandatory or optional nature of such redemption, whether
such redemption shall be in whole and/or in part, and the amount and
kind of consideration to be received upon such redemption);
(v) the amount or amounts which shall be paid out of the assets
of the Company to Preferred Members holding the Preferred Securities of
such series upon voluntary or involuntary liquidation, dissolution or
winding up of the Company, and any rights in addition to those set
forth in this Agreement of the Preferred Members that hold Preferred
Securities of such series upon the liquidation, dissolution or winding
up of the Company;
(vi) whether or not the Preferred Securities of such series
shall be subject to the operation of a retirement or sinking fund, and,
if so, the extent to and manner in which any such retirement or sinking
fund shall be applied to the purchase or redemption of the Preferred
Securities of such series for retirement and the terms and provisions
relative to the operation thereof;
(vii) whether or not the Preferred Securities of such series
shall be convertible into, or exchangeable for, Interests of any other
class or classes, or of any other series of Preferred Securities, or
securities of any other kind, including those issued by the Managing
Member, American General or any of its Affiliates, and if so
convertible or exchangeable, the terms and conditions of such
conversion or exchange, including the price or prices or the rate or
rates of conversion or exchange; the method, if any, of adjusting the
same and the terms of any right to terminate such conversion or
exchange privilege;
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<PAGE> 25
(viii) any limitations and restrictions in addition to those
set forth in this Agreement to be effective while any Preferred
Securities of such series are outstanding upon the payment of dividends
or other distributions on, and upon the purchase, redemption or other
acquisition by the Company of, Common Securities or any other series of
Preferred Securities;
(ix) any conditions or restrictions in addition to those set
forth in this Agreement upon the issue of any additional Interests
(including additional Preferred Securities of such series or Interests
of any other series ranking pari passu with or senior to the Preferred
Securities of such series as to the payment of dividends or
distribution of assets on dissolution);
(x) the times, prices and other terms and conditions for the
offering of the Preferred Securities of such series; and
(xi) any other relative rights, powers, preferences,
limitations and restrictions as shall not be inconsistent with this
Section 7.1.
In connection with the foregoing and without limiting the
generality thereof, the Managing Member is hereby expressly authorized, without
the vote or approval of any other Member, to take any action to create under the
provisions of this Agreement a series of Preferred Securities that was not
previously outstanding. Without the vote or approval of any other Member, the
Managing Member may execute, swear to, acknowledge, deliver, file and record
whatever documents may be required in connection with the issue from time to
time of Preferred Securities in one or more series as shall be necessary,
convenient or desirable to reflect the issue of such series. The Managing Member
shall do all things it deems to be appropriate or necessary to comply with the
Delaware Act and is authorized and directed to do all things it may deem to be
necessary or permissible in connection with any future issuance, including
compliance with any statute, rule, regulation or guideline of any federal, state
or other governmental agency or any securities exchange.
Any action or actions taken by the Managing Member pursuant to
the provisions of this paragraph (b) shall be deemed an amendment and supplement
to and part of this Agreement.
(c) All Preferred Securities shall rank senior to the Common
Securities in respect of the right to receive dividends and the right to receive
payments out of the assets of the Company upon voluntary or involuntary
liquidation, dissolution or winding up of the Company. All Preferred Securities
redeemed, purchased or otherwise acquired by the Company (including Preferred
Securities surrendered for conversion or exchange) shall be cancelled and
thereupon restored to the status of authorized but unissued Preferred Securities
undesignated as to series.
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(d) No Member shall be entitled as a matter of right to
subscribe for or purchase, or have any preemptive right with respect to, any
part of any new or additional issue of Common Securities or Preferred Securities
of any series whatsoever, or of securities convertible into any Common
Securities or Preferred Securities of any series whatsoever, whether now or
hereafter authorized and whether issued for cash or other consideration or by
way of dividend.
(e) Common Securities shall not be evidenced by any certificate
or other written instrument, but shall only be evidenced by this Agreement.
Common Securities shall be non-assignable and non-transferable, and may only be
issued to and held by American General (or a successor of American General in
accordance with the provisions of the Guarantee) and American General Manager.
Any transfer or purported transfer of any Common Security shall be null and
void. Preferred Securities shall be freely assignable and transferable.
(f) Any Person purchasing Preferred Securities shall be
admitted to the Company as a Preferred Member upon compliance with Section 2.7
of this Agreement.
SECTION 7.2. PERSONS DEEMED PREFERRED MEMBERS. The Company may treat
the Person in whose name any Preferred Certificate shall be registered on the
books and records of the Company as a Preferred Member and the sole holder of
such Preferred Certificate for purposes of receiving dividends and for all other
purposes whatsoever and, accordingly, shall not be bound to recognize any
equitable or other claims to or interest in such Preferred Certificate on the
part of any other Person, whether or not the Company shall have actual or other
notice thereof.
ARTICLE VIII
VOTING AND MEETINGS
SECTION 8.1. VOTING RIGHTS OF HOLDERS OF PREFERRED SECURITIES.
(a) Except as shall be otherwise provided herein or in the
Preferred Securities Designation for any series of Preferred Securities and
except as otherwise required by the Delaware Act, the Preferred Members holding
such Preferred Securities shall have, with respect to such Preferred Securities,
no right or power to vote on any question or matter or in any proceeding or to
be represented at, or to receive notice of, any meeting of Members.
(b) If (i) the Company fails to pay dividends in full
(including any arrearages and Additional Dividends) on the Preferred Securities
of any series for 18 consecutive monthly dividend periods; (ii) an Event of
Default (as defined in the Indenture) occurs and is continuing with respect to
the Debentures of the related series; or (iii) American General is in default on
any of its payment or other obligations under the Guarantee with respect to the
Preferred Securities of any series, then the Preferred Members holding a
Majority in Liquidation Preference of the outstanding Preferred
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Securities of such series will be entitled to appoint and authorize a trustee to
enforce the Company's rights under such Debentures against American General,
enforce the obligations undertaken with respect to such Preferred Securities by
American General under the Guarantee and, to the extent permitted by law,
declare and pay dividends on such Preferred Securities to the extent funds of
the Company are legally available therefor. For purposes of determining whether
the Company has failed to pay dividends in full for 18 consecutive monthly
dividend periods, dividends shall be deemed to remain in arrears,
notwithstanding any partial payments in respect thereof, until all accumulated
and unpaid dividends (including any Additional Dividends) have been or
contemporaneously are declared and paid with respect to all monthly dividend
periods terminating on or prior to the date of payment of such full cumulative
dividends. Not later than 30 calendar days after the right to appoint a trustee
arises and upon not less than 15 calendar days' written notice by first class
mail to the Preferred Members holding Preferred Securities of such series, the
Managing Member will convene a meeting to elect such a trustee. If the Managing
Member fails to convene such meeting within such 30-day period, the Preferred
Members holding at least 10% in Liquidation Preference of the Preferred
Securities of such series will be entitled to convene such meeting. In the event
that, at such meeting, Preferred Members holding less than a Majority in
Liquidation Preference vote for such appointment, no such trustee shall be
appointed. Any trustee so appointed shall vacate office immediately, subject to
the applicable terms of any Interests the holders of which were entitled to
appoint such trustee, if the Company (or American General pursuant to the
Guarantee) shall have paid in full all accumulated and unpaid dividends
(including any Additional Dividends) on the Preferred Securities of such series
or such Event of Default under the Indenture or such default under the
Guarantee, as the case may be, shall have been cured. Notwithstanding the
appointment of any such trustee, American General shall retain all rights under
the Indenture and as obligor under the Debentures of the related series,
including any rights it may have to extend the interest payment period of any
Debentures, and any such extension would not constitute an Event of Default
under the Indenture with respect to such series of Debentures or enable a holder
of Preferred Securities of the related series to require the payment of a
dividend that has not theretofore been declared.
In furtherance of the foregoing, and without limiting the
powers of any trustee so appointed and for the avoidance of any doubt concerning
the powers of such trustee, the trustee, in its own name and as trustee of an
express trust for the benefit of the related Preferred Members, may institute a
proceeding, including, without limitation, any suit in equity, an action at law
or other judicial or administrative proceeding, to enforce the Company's
creditor rights directly against American General to the same extent as the
Company and on behalf of the Company, and may prosecute such proceeding to
judgment or final decree, and enforce the same against American General and,
subject to any subordination provisions contained in the Indenture, collect, out
of the property, wherever situated, of American General the monies adjudged or
decreed to be payable in the manner and to the extent provided by law.
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So long as the Debentures of any series are held by the
Company, the Managing Member shall not (i) at any time in which a trustee has
been appointed pursuant to this Section 8.1(b), direct the time, method and
place of conducting any proceeding for any remedy available to such trustee with
respect to such series of Debentures, or exercising any trust or power conferred
on such trustee with respect to such series of Debentures, (ii) waive compliance
with, or any past default under, the Debentures of such series or the Indenture
(to the extent that the holder of such Debentures is entitled to the benefits of
the covenant or condition waived), (iii) exercise any right to rescind or annul
a declaration that the principal of the Debentures of such series shall be due
and payable, (iv) consent to any amendment, modification or termination of the
Debentures of such series or of the Indenture which requires a consent of the
holders of the Debentures of such series pursuant to Section 902 of the
Indenture, without, in each case, obtaining the prior approval of the Preferred
Members holding at least 66-2/3% in Liquidation Preference of the Preferred
Securities of such series; provided, however, that where a waiver or consent
under the Debentures of such series would require the consent of each holder
affected thereby, no such consent shall be given by the Managing Member without
the prior consent of each Preferred Member holding Preferred Securities of such
series. The Managing Member shall not revoke any action previously authorized or
approved by a vote of Preferred Members holding Preferred Securities of such
series, without the approval of Preferred Members holding at least 66-2/3% in
Liquidation Preference of the Preferred Securities of such series then
outstanding (or, if such action required the approval of each such Preferred
Member, then only with the approval of each such Preferred Member). The Managing
Member shall notify all Preferred Members holding Preferred Securities of such
series of any notice of default with respect to the Debentures of the related
series received from the trustee under the Indenture.
(c) If any proposed amendment to this Agreement or the
Preferred Securities Designation for any series of Preferred Securities provides
for, or the Managing Member otherwise proposes to effect:
(i) any action that would materially adversely affect
the powers, preferences or special rights of the Preferred Securities
of such series, whether by way of amendment of this Agreement, such
Preferred Securities Designation or otherwise (including, without
limitation, the authorization or issuance of any Interests in the
Company ranking, as to payment of dividends or distribution of assets
upon liquidation, dissolution or winding up of the Company, senior to
the Preferred Securities of such series),
(ii) the liquidation, dissolution or winding up of the
Company (in any case other than in connection with the exchange of
Preferred Securities of such series for other securities pursuant to
the terms of such series of Preferred Securities), or
(iii) the commencement of any voluntary bankruptcy,
insolvency, reorganization or other similar proceeding involving the
Company,
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then the Preferred Members holding outstanding Preferred Securities of such
series, together with, if any such resolution or action described in clause (i)
above would materially adversely affect the powers, preferences or special
rights of any Company Dividend Parity Securities or any Company Liquidation
Parity Securities, the holders of such Company Dividend Parity Securities or
such Company Liquidation Parity Securities, as the case may be, or, with respect
to any such resolution or action described in clause (ii) or (iii) above, the
holders of all Company Liquidation Parity Securities, will be entitled to vote
together as a class on such resolution or action of the Managing Member (but not
any other resolution or action) and such resolution or action shall not be
effective except with the approval of the Preferred Members holding at least
66-2/3% in Liquidation Preference of such outstanding securities; provided,
however, that no such approval shall be required if the liquidation, dissolution
or winding-up of the Company is proposed or initiated upon the occurrence of any
of the events specified in Section 15.2(a) through (c) and (e) through (f).
The powers, preferences or special rights of the Preferred
Securities of any series will be deemed not to be adversely affected by the
creation or issuance of, and no vote will be required for the creation or
issuance of, any further Interests in the Company ranking junior to or pari
passu with the Preferred Securities of such series with respect to voting rights
or rights to payment of dividends or distribution of assets upon liquidation,
dissolution or winding-up of the Company.
(d) Notwithstanding any provision to the contrary herein, the
first sentence of Section 14.1 of this Agreement may only be amended with the
consent of each Preferred Member; provided that, to the fullest extent permitted
by applicable law, any such amendment shall not permit the Preferred Members to
approve any transferee of Common Securities.
(e) Notwithstanding that Preferred Members holding Preferred
Securities of any series are entitled to vote or consent under any of the
circumstances described in this Agreement, any of the Preferred Securities of
any series that are owned by American General or by any entity more than 50% of
which is owned by American General, either directly or indirectly, shall not be
entitled to vote or consent and shall, for the purposes of such vote or consent,
be treated as if they were not outstanding.
SECTION 8.2. VOTING RIGHTS OF HOLDERS OF COMMON SECURITIES. Except as
otherwise provided herein or in the Preferred Securities Designation for any
series of Preferred Securities and except as otherwise required by the Delaware
Act, all voting rights of the Company shall be vested exclusively in the Common
Members. The Common Securities shall entitle the Common Members to vote in
proportion to their percentage ownership interest of Common Securities upon all
matters upon which Common Members have the right to vote. All Common Members
shall have the right to vote separately as a class on any matter on which the
Common Members have the right to vote regardless of the voting rights of any
other Member.
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SECTION 8.3. MEETINGS OF THE MEMBERS.
(a) Meetings of the Members of any class or series or of all
classes or series of Interests may be called at any time by the Managing Member
or as provided by any applicable Preferred Securities Designation. Except to the
extent otherwise provided, the following provisions shall apply to meetings of
Members.
(b) Members may vote in person or by proxy at such meeting.
Whenever a vote, consent or approval of Members is permitted or required under
this Agreement or any applicable Preferred Securities Designation, such vote,
consent or approval may be given at a meeting of Members or by written consent.
(c) Each Member may authorize any Person to act for it by proxy
on all matters in which a Member is entitled to vote, including waiving notice
of any meeting, or voting or participating at a meeting. Every proxy must be
signed by the Member or its attorney-in-fact and shall be revocable at the
pleasure of the Member executing it at any time before it is voted.
(d) Each meeting of Members shall be conducted by the Managing
Member or by such other Person that the Managing Member may designate.
(e) Any required approval of Preferred Members holding
Preferred Securities of a series may be given at a separate meeting of such
Preferred Members convened for such purpose or at a meeting of Members of the
Company or pursuant to written consents. The Managing Member will cause a notice
of any meeting at which Preferred Members holding Preferred Securities of a
series are entitled to vote, or of any matter upon which action by written
consent of such Preferred Members is to be taken, to be mailed to each Preferred
Member holding Preferred Securities of such series. Each such notice will
include a statement setting forth (i) the date of such meeting or the date by
which such action is to be taken, (ii) a description of any matter on which such
Preferred Members are entitled to vote or of such matter upon which written
consent is sought and (iii) instructions for the delivery of proxies or
consents.
(f) Subject to Section 8.3(e) and the applicable Preferred
Securities Designation, the Managing Member, in its sole discretion, shall
establish all other provisions relating to meetings of Members, including notice
of the time, place or purpose of any meeting at which any matter is to be voted
on by any Members, waiver of any such notice, action by consent without a
meeting, the establishment of a record date, quorum requirements (but in no
event higher than 66 2/3% in Liquidation Preference of the Preferred Securities
of any series), voting in person or by proxy or any other matter with respect to
the exercise of any such right to vote.
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ARTICLE IX
DIVIDENDS
SECTION 9.1. DIVIDENDS. (a) Preferred Members shall receive periodic
dividends, if any, in accordance with the Preferred Securities Designation for
the Preferred Securities of any particular series, as and when declared by the
Managing Member, and Common Members shall receive periodic dividends, subject to
Section 9.3 of this Agreement, the applicable terms of any series of Preferred
Securities and the provisions of the Delaware Act, as and when declared by the
Managing Member, in its discretion out of funds of the Company legally available
therefor.
(b) Dividends on the Preferred Securities shall be declared by
the Managing Member to the extent that the Managing Member reasonably
anticipates that at the time of payment the Company will have, and must be paid
by the Company to the extent that at the time of proposed payment it has, (i)
funds legally available for the payment of such dividends and (ii) cash on hand
sufficient to permit such payments.
(c) A Preferred Member shall not be entitled to receive any
dividend with respect to the Preferred Securities of any series, irrespective of
whether such dividend has been declared by the Managing Member, prior to the
date on which such dividend is payable (the "Dividend Payment Date") and until
such time as the Company has received the interest payment on the Debentures of
the related series for the interest payment date corresponding to such Divided
Payment Date and such monies are available for distribution to the Preferred
Member pursuant to the terms of this Agreement and the Delaware Act, and
notwithstanding any provision of Section 18-606 of the Delaware Act to the
contrary, until such time, a Preferred Member shall not have the status of a
creditor of the Company, or the remedies available to a creditor of the Company.
SECTION 9.2. LIMITATIONS ON DISTRIBUTIONS. Notwithstanding any
provision to the contrary contained in this Agreement, the Company shall not
make a distribution (including a dividend) to any Member on account of its
Interest if such distribution would violate Section 18-607 of the Delaware Act
or other applicable law.
SECTION 9.3. CERTAIN RESTRICTIONS ON THE PAYMENT OF DIVIDENDS. If
accumulated dividends (including Additional Dividends) have not been paid in
full on the Preferred Securities of any series then outstanding, the Company
shall not:
(i) pay, or declare and set aside for payment, any dividends on
the Preferred Securities of any other series or any other Interests in
the Company ranking pari passu with the Preferred Securities of such
series as to the payment of dividends ("Company Dividend Parity
Securities"), unless the amount of any dividends declared on such
Company Dividend Parity Securities is paid on such Company Dividend
Parity Securities and the Preferred Securities of such series on a pro
rata basis on the date such dividends are paid on such Company Dividend
Parity Securities, so that the ratio of
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(x) (A) the aggregate amount paid as dividends on the
Preferred Securities of such series to (B) the aggregate amount
paid as dividends on the Company Dividend Parity Securities is
the same as the ratio of
(y) (A) the aggregate amount of all accumulated
arrears of unpaid dividends on the Preferred Securities of such
series to (B) the aggregate amount of all accumulated arrears
of unpaid dividends on the Company Dividend Parity Securities;
(ii) pay, or declare and set aside for payment, any dividends
on any Interests in the Company ranking junior to the Preferred
Securities of such series as to the payment of dividends ("Company
Dividend Junior Securities"); or
(iii) redeem, purchase or otherwise acquire any Company
Dividend Parity Securities or Company Dividend Junior Securities (other
than purchases or acquisitions resulting from the reclassification of
such Securities or the exchange or conversion of any Company Dividend
Parity Security or Company Dividend Junior Security pursuant to the
terms thereof or the purchase of fractional interests therein upon such
conversion or exchange);
until, in each case, such time as all accumulated and unpaid dividends
(including Additional Dividends) on all of the Preferred Securities of
such series shall have been paid in full or have been irrevocably set
aside for payment in full for all dividend periods terminating on or
prior to, in the case of clauses (i) and (ii), the date of such
payment, and in the case of clause (iii), the date of such redemption,
purchase or other acquisition.
ARTICLE X
BOOKS AND RECORDS
SECTION 10.1. BOOKS AND RECORDS; ACCOUNTING. The Managing
Member shall keep or cause to be kept at the address of the Managing Member (or
at such other place as the Managing Member shall advise the other Members in
writing) true and full books and records regarding the status of the business
and financial condition of the Company.
SECTION 10.2. FISCAL YEAR. The fiscal year of the Company for
federal income tax and accounting purposes shall, except as otherwise required
in accordance with the Code, end on December 31 of each year.
SECTION 10.3. LIMITATION ON ACCESS TO RECORDS. Notwithstanding
any provision of this Agreement, the Managing Member may, to the maximum extent
permitted by law, keep confidential from the Preferred Members any information
the disclosure of which the Managing Member reasonably believes is not in the
best interest of the Company or could damage the Company or its business or
which the Company or the Managing Member is required by law or by an agreement
with any Person to keep confidential.
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ARTICLE XI
TAX MATTERS
SECTION 11.1. COMPANY TAX RETURNS. (a) The Managing Member
shall cause to be prepared and timely filed all tax returns required to be filed
for the Company. The Managing Member may, in its discretion, make or refrain
from making any federal, state or local income or other tax elections for the
Company that it deems necessary or advisable, including, without limitation, any
election under Section 754 of the Code or any successor provision.
(b) The Managing Member is hereby designated as the Company's
"Tax Matters Partner" under Code Section 6231(a)(7) and shall have all the
powers and responsibilities of such position as provided in the Code. The
Managing Member is specifically directed and authorized to take whatever steps
the Managing Member, in its discretion, deems necessary or desirable to perfect
such designation, including filing any forms or documents with the Internal
Revenue Service and taking such other action as may from time to time be
required under the regulations issued under the Code. Expenses incurred by the
Tax Matters Partner, in its capacity as such, will be borne by the Company.
SECTION 11.2. TAX REPORTS. The Managing Member shall, as
promptly as practicable and in any event within 90 days after the end of each
fiscal year, cause to be prepared and mailed to each Preferred Member of record
federal income tax form K-1 and any other forms which are necessary or
advisable.
SECTION 11.3. TAXATION AS PARTNERSHIP. The Members recognize that the
Company will be treated as a partnership for U.S. federal income tax purposes,
and the Managing Member shall operate the Company in such a manner as will
preserve its treatment as a partnership for U.S. federal income tax purposes.
ARTICLE XII
EXPENSES
SECTION 12.1. EXPENSES. Except as otherwise provided in this
Agreement, the Company shall be responsible for and shall pay all expenses out
of funds of the Company determined by the Managing Member to be available for
such purpose, provided that such expenses or obligations are those of the
Company or are otherwise incurred by the Managing Member in connection with this
Agreement, including, without limitation:
(a) all costs and expenses related to the business of the
Company and all routine administrative expenses of the Company,
including the maintenance of books and records of the Company, the
preparation and dispatch to the Members of checks, financial reports,
tax returns and notices required pursuant to this Agreement and the
holding of any meetings of the Members;
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(b) all expenses incurred in connection with any litigation
involving the Company (including the cost of any investigation and
preparation) and the amount of any judgment or settlement paid in
connection therewith (other than expenses incurred by the Managing
Member in connection with any litigation brought by or on behalf of any
Member against the Managing Member);
(c) all expenses for indemnity or contribution payable by the
Company to any Person;
(d) all expenses incurred in connection with the collection of
amounts due to the Company from any Person;
(e) all expenses incurred in connection with the preparation of
amendments to this Agreement; and
(f) all expenses incurred in connection with the liquidation,
dissolution or winding-up of the Company.
ARTICLE XIII
LIABILITY
SECTION 13.1. LIABILITY OF COMMON MEMBERS. Each Common Member,
by acquiring its Interest and being admitted to the Company as a Common Member,
shall be liable to the creditors of the Company (other than to Members holding
other classes or series of Interests, in their capacity as Members) (hereinafter
referred to individually as a "Third Party Creditor," and collectively as the
"Third Party Creditors") to the same extent that a general partner of a limited
partnership formed under the LP Act is liable under Section 17-403(b) of the LP
Act to creditors of the limited partnership (other than the other partners in
their capacity as partners), as if the Company were a limited partnership formed
under the LP Act and the Common Members were general partners of the limited
partnership. In furtherance but not in limitation of the generality of the
foregoing, each Common Member is liable for any and all debts, obligations and
other liabilities of the Company, whether arising under contract or by tort,
statute, operation of law or otherwise, all of which shall be enforceable
directly and absolutely against each Common Member by each Third Party Creditor.
SECTION 13.2. LIABILITY OF PREFERRED MEMBERS.
(a) Except as otherwise provided by the Delaware Act, (i) the
debts, obligations and liabilities of the Company, whether arising by contract,
tort, statute, operation of law or otherwise, shall be solely the debts,
obligations and liabilities of the Company and, to the extent set forth in
Section 13.1. of this Agreement, the Common Members and (ii) no Preferred Member
shall be obligated personally for any such debt, obligation or liability of the
Company solely by reason of being a Preferred Member of the Company.
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(b) A Preferred Member, in its capacity as such, shall have no
liability in excess of (i) the amount of its capital contributions, (ii) its
share of any assets and undistributed profits of the Company, (iii) any amounts
required to be paid by such Preferred Member in the Preferred Securities
Designation for the series of Preferred Securities held by such Preferred Member
and (iv) the amount of any distributions wrongfully distributed to it.
ARTICLE XIV
ASSIGNMENT OF INTERESTS
SECTION 14.1. ASSIGNMENT OF INTERESTS. Notwithstanding anything
to the contrary in this Agreement, after the date hereof Common Securities shall
be non-assignable and non-transferable (other than pursuant to a merger or
consolidation of a Common Member), and may only be issued to a Common Member and
held by the Common Member which holds such Common Security on the date hereof.
Preferred Securities shall be freely assignable and transferable, subject to the
provisions of Section 2.7 of this Agreement.
SECTION 14.2. RIGHT OF ASSIGNEE TO BECOME A MEMBER. An assignee
of a Preferred Security shall become a Preferred Member upon compliance with the
provisions of Section 2.7 of this Agreement.
SECTION 14.3. EVENTS OF CESSATION OF MEMBERSHIP. A Person shall
cease to be a Member upon the lawful assignment of its Interests (including any
redemption, exchange or other repurchase by the Company or the Common Members)
or as otherwise provided herein.
ARTICLE XV
DISSOLUTION, LIQUIDATION AND TERMINATION
SECTION 15.1. NO DISSOLUTION. The Company shall not be
dissolved by the admission of Members in accordance with the terms of this
Agreement. Except as provided in Sections 15.2(b) and (c) of this Agreement, the
death, retirement, resignation, expulsion, bankruptcy or dissolution of a
Member, or the occurrence of any other event which terminates the continued
membership of a Member in the Company, shall not cause the Company to be
dissolved and its affairs wound up so long as the Company at all times has at
least two Members. Upon the occurrence of any such event, the business of the
Company shall be continued without dissolution.
SECTION 15.2. EVENTS CAUSING DISSOLUTION. The Company shall be
dissolved and its affairs shall be wound up upon the earliest to occur of any of
the following events:
(a) the expiration of the term of the Company, as provided in
Section 2.3 of this Agreement;
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(b) a decree or order by a court having jurisdiction shall have
been entered adjudging either of the Common Members a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of either of the
Common Members under any applicable Federal or State bankruptcy or
similar law, and such decree or order shall have continued undischarged
and unstayed for a period of 90 days; or a decree or order of a court
having jurisdiction in the premises for the appointment of a receiver,
liquidator, trustee, assignee, sequestrator or similar official in
bankruptcy or insolvency of either of the Common Members or of all or
substantially all of its property, or for the winding-up or liquidation
of its affairs, shall have been entered, and such decree or order shall
have continued undischarged and unstayed for a period of 90 days; or
either of the Common Members shall institute proceedings to be
adjudicated a voluntary bankrupt, or shall consent to the filing of a
bankruptcy proceeding against it, or shall file a petition or answer or
consent seeking reorganization, arrangement, adjustment or composition
under any applicable Federal or State bankruptcy or similar law, or
shall consent to the filing of any such petition, or shall consent to
the appointment of a receiver, liquidator, trustee, assignee,
sequestrator or similar official in bankruptcy or insolvency of either
of the Common Members or of all or substantially all of its property,
or shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they
become due and its willingness to be adjudged a bankrupt, or corporate
action shall be taken by either of the Common Members in furtherance of
any of the aforesaid purposes;
(c) the withdrawal, retirement, resignation, expulsion,
dissolution, winding-up or liquidation of any Common Member or the
occurrence of any other event that terminates the continued membership
of any Common Member under the Delaware Act;
(d) the decision made by the Managing Member (subject to the
voting rights of Preferred Members set forth in Section 8.1 of this
Agreement) to dissolve the Company;
(e) the entry of a decree of judicial dissolution of the
Company under Section 18-802 of the Delaware Act;
(f) the election of the Managing Member, in connection with the
exchange of all series of Preferred Securities outstanding (in
accordance with the Preferred Securities Designation for such series of
Preferred Securities) for the related series of Debentures; or
(g) the written consent of all Members.
SECTION 15.3. NOTICE OF DISSOLUTION. Upon the dissolution of the
Company, the Managing Member shall promptly notify the Members of such
dissolution.
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SECTION 15.4. LIQUIDATION. Upon dissolution of the Company, the
Managing Member or, in the event that the dissolution is caused by an event
described in Sections 15.2(b) and (c) and there is no Managing Member, a Person
or Persons who may be approved by the Preferred Members holding a Majority in
Liquidation Preference of the Preferred Securities, as liquidating trustees,
shall immediately commence to wind-up the Company's affairs; provided, however,
that a reasonable time shall be allowed for the orderly liquidation of the
assets of the Company and the satisfaction of liabilities to creditors so as to
enable the Members to minimize the normal losses attendant upon a liquidation.
The proceeds of liquidation shall be distributed, as realized, in the manner
provided in Section 18-804 of the Delaware Act, subject to the Preferred
Securities Designation for any series of Preferred Securities and Section 15.5
of this Agreement.
SECTION 15.5. CERTAIN RESTRICTIONS ON LIQUIDATION PAYMENTS. In
the event of any voluntary or involuntary liquidation, dissolution or winding-up
of the Company other than in connection with the exchange of all series of
Preferred Securities outstanding (in accordance with the Preferred Securities
Designation for each such series of Preferred Securities) for the related series
Debentures, Preferred Members holding Preferred Securities of each series at the
time outstanding will be entitled to receive out of the assets of the Company
legally available for distribution to Members, before any distribution of assets
is made to Common Members or Members holding any other class of Interests in the
Company ranking junior to the Preferred Securities of such series as to the
distribution of assets upon liquidation, dissolution or winding-up of the
Company, but together with Preferred Members holding Preferred Securities of any
other series or any other Interests in the Company then outstanding ranking pari
passu with the Preferred Securities of such series as to the distribution of
assets upon liquidation, dissolution or winding-up of the Company ("Company
Liquidation Parity Securities"), an amount equal to the aggregate liquidation
preference for Preferred Securities of such series as set forth in the
applicable Preferred Securities Designation plus all accumulated and unpaid
dividends (whether or not earned or declared), including any Additional
Dividends, to the date of payment (the "Liquidation Distribution"). If, upon any
such liquidation, dissolution or winding-up, the Liquidation Distributions can
be paid only in part because the Company has insufficient assets available to
pay in full the aggregate Liquidation Distributions and the aggregate maximum
liquidation distributions on the Company Liquidation Parity Securities, then the
amounts payable directly by the Company on the Preferred Securities of such
series and on such Company Liquidation Parity Securities shall be paid on a pro
rata basis, so that the ratio of
(i) (x) the aggregate amount paid as Liquidation Distributions
on the Preferred Securities of such series to (y) the aggregate amount
paid as liquidation distributions on the Company Liquidation Parity
Securities, is the same as the ratio of
(ii) (x) the aggregate Liquidation Distributions on the
Preferred Securities of such series to (y) the aggregate maximum
liquidation distributions on the Company Liquidation Parity Securities.
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SECTION 15.6. TERMINATION. The Company shall terminate when all
of the assets of the Company have been distributed in the manner provided for in
this Article XV, and the Certificate shall have been cancelled in the manner
required by the Delaware Act.
ARTICLE XVI
MISCELLANEOUS
SECTION 16.1. AMENDMENTS. Except as otherwise provided in this
Agreement or by any applicable Preferred Securities Designation, this Agreement
may be amended by, and only by, a written instrument executed by the Common
Members.
SECTION 16.2. SUCCESSORS; COUNTERPARTS. This Agreement (a)
shall be binding as to the executors, administrators, estates, heirs and legal
successors, or nominees or representatives, of the Members and (b) may be
executed in several counterparts with the same effect as if the parties
executing the several counterparts had all executed one counterpart. No person
other than the Members and their respective executors, administrators, estates,
heirs and legal successors, or their nominees or representatives, shall obtain
any rights by virtue of this Agreement.
SECTION 16.3. GOVERNING LAW; SEVERABILITY. This Agreement shall
be governed by and construed in accordance with the laws of the State of
Delaware without giving effect to the principles of conflict of laws thereof. In
particular, this Agreement shall be construed to the maximum extent possible to
comply with all of the terms and conditions of the Delaware Act. If,
nevertheless, it shall be determined by a court of competent jurisdiction that
any provisions or wording of this Agreement shall be invalid or unenforceable
under the Delaware Act or other applicable law, such invalidity or
unenforceability shall not invalidate the entire Agreement. In that case, this
Agreement shall be construed so as to limit any term or provision so as to make
it enforceable or valid within the requirements of applicable law, and, in the
event such term or provisions cannot be so limited, this Agreement shall be
construed to omit such invalid or unenforceable provisions. If it shall be
determined by a court of competent jurisdiction that any provision relating to
the distributions and allocations of the Company or to any fee payable by the
Company is invalid or unenforceable, this Agreement shall be construed or
interpreted so as (a) to make it enforceable or valid and (b) to make the
distributions and allocations as closely equivalent to those set forth in this
Agreement as is permissible under applicable law.
SECTION 16.4. FILINGS. Following the execution and delivery of
this Agreement, the Managing Member shall promptly prepare any documents
required to be filed and recorded under the Delaware Act, and the Managing
Member shall promptly cause each such document to be filed and recorded in
accordance with the Delaware Act and, to the extent required by local law, to be
filed and recorded or notice thereof to be published in the appropriate place in
each jurisdiction in which the Company may hereafter establish a place of
business. The Managing Member shall also promptly cause to be filed, recorded
and published such statements or other instruments required by any provision of
any applicable
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law of the United States or any state or other jurisdiction which governs the
conduct of its business from time to time.
SECTION 16.5. POWER OF ATTORNEY. Each Preferred Member does
hereby constitute and appoint the Managing Member as its true and lawful
representative and attorney-in-fact, in its name, place and stead to make,
execute, sign, deliver and file (a) any amendment of the Certificate required
because of an amendment to this Agreement or in order to effectuate any change
in the membership of the Company, (b) any amendment to this Agreement made in
accordance with the terms hereof and (c) all such other instruments, documents
and certificates which may from time to time be required by the laws of the
United States of America, the State of Delaware or any other jurisdiction, or
any political subdivision of agency thereof, to effectuate, implement and
continue the valid and subsisting existence of the Company or to dissolve the
Company or for any other purpose consistent with this Agreement and the
transactions contemplated hereby.
The power of attorney granted hereby is coupled with an interest and
shall (a) survive and not be affected by the subsequent death, incapacity,
disability, dissolution, termination or bankruptcy of the Preferred Member
granting the same or the transfer of all or any portion of such Preferred
Member's Interest and (b) extend to such Preferred Member's successors, assigns
and legal representatives.
SECTION 16.6. EXCULPATION. (a) No Covered Person shall be
liable to the Company or any Member for any loss, damage or claim incurred by
reason of any act or omission performed or omitted by such Covered Person in
good faith on behalf of the Company and in a manner reasonably believed to be
within the scope of authority conferred on such Covered Person by this
Agreement.
(b) A Covered Person shall be fully protected in relying in good faith
upon the records of the Company and upon such information, opinions, reports or
statements presented to the Company by any Person as to matters the Covered
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Company, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which distributions to
Members might properly be paid.
SECTION 16.7. INDEMNIFICATION. To the fullest extent permitted
by applicable law, an Indemnified Person shall be entitled to indemnification
from the Company for any loss, damage or claim incurred by such Indemnified
Person by reason of any act or omission performed or omitted by such Indemnified
Person in good faith on behalf of the Company and in a manner reasonably
believed to be within the scope of authority conferred on such Indemnified
Person by this Agreement; provided, however, that any indemnity under this
Section 16.7 shall be provided out of and to the extent of Company assets only,
and no Member shall have any personal liability on account thereof. The right of
indemnification pursuant to this Section 16.7 shall include the right to be
paid, in advance, or reimbursed
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by the Company for the reasonable expenses incurred by an Indemnified Person who
was, is, or is threatened to be made a named defendant or respondent in a
proceeding.
SECTION 16.8. ADDITIONAL DOCUMENTS. Each Preferred Member, upon
the request of the Managing Member, agrees to perform all further acts and
execute, acknowledge and deliver any documents that may be reasonably necessary
to carry out the provisions of this Agreement.
SECTION 16.9. NOTICES. All notices provided for in this
Agreement shall be in writing, duly signed by the party giving such notice, and
shall be delivered, telecopied or mailed by registered or certified mail, as
follows:
(i) If given to the Company, in care of Managing
Member at the Company's mailing address set forth below:
c/o American General Delaware Management Corporation
2590 American General Center
Nashville, Tennessee 37250
Facsimile No.: (713) 749-1251
Attention: Kent E. Barrett
Vice President and Treasurer
(ii) If given to any Member, at the address set forth
on the registration books maintained by or on behalf of the
Company.
Each such notice, request or other communication shall be effective (a) if given
by telecopier, when transmitted to the number specified in such registration
books and the appropriate confirmation is received, (b) if given by mail, 72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, or (c) if given by any other means,
when delivered at the address specified in such registration books.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above stated.
AMERICAN GENERAL CORPORATION
By: ___________________________
Name: _________________________
Title: ________________________
AMERICAN GENERAL DELAWARE
MANAGEMENT CORPORATION
By: ___________________________
Name: _________________________
Title: ________________________
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EXHIBIT 4(l)
TERMS OF THE _______________________________ PREFERRED SECURITIES, SERIES A
DATED AS OF ______________, 1995
WRITTEN ACTION OF THE MANAGING MEMBER
PURSUANT TO SECTION 7.1 OF THE AMENDED
AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF AMERICAN GENERAL DELAWARE, L.L.C.
The undersigned Managing Member of American General Delaware, L.L.C.,
a Delaware limited liability company (the "Company"), pursuant to Section
7.1(b) of the Amended and Restated Limited Liability Company Agreement of the
Company (the "Agreement") dated as of ________________, 1995 by and among
American General Corporation ("American General"), the Managing Member and the
Persons who become Members of the Company in accordance with the provisions
thereof, does hereby authorize the issue of, and establish the relative rights,
powers, preferences, limitations and restrictions of, a series of Preferred
Securities as follows:
1. Definitions. All terms defined in the Agreement and not
otherwise defined herein shall have for purposes hereof the meanings provided
for therein. The following additional terms have the respective meanings
specified below:
"Additional Dividends" means the amount of dividends that is
payable by the Company on any dividend arrearages in respect of the Series A
Preferred Securities at the rate of ___% per annum compounded monthly.
"American General Common Stock" means the Common Stock, par
value $.50 per share, of American General. However, subject to the
anti-dilution provisions of the Series A Debentures, shares of American General
Common Stock issuable on conversion of Series A Debentures or upon exchange of
the American General Preferred Stock shall include only shares of the class
designated as Common Stock of American General on the date hereof or shares of
any class or classes resulting from any reclassification or reclassifications
thereof and which have no preference as to the payment of dividends or the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding-up of American General and which are not subject to
redemption by American General; provided, that if at any time there shall be
more than one such resulting class, the shares of each such class then so
issuable shall be substantially in the proportion which the total number of
shares of such class resulting from all such reclassification bears to the
total number of shares of all such classes resulting from all such
reclassification.
"American General Preferred Stock" means the Series A
Cumulative Convertible Preferred Stock, par value $1.50 per share, of American
General with such terms and provisions as set forth in the Restated Articles of
Incorporation, as amended, and in the applicable Statement of Resolution
Establishing a Series of Shares.
<PAGE> 2
"Book-Entry Interest" means a beneficial interest in the
global certificates representing Series A Preferred Securities, ownership and
transfers of which shall be made through the book-entry system of a Clearing
Agency as described in Section 12.
"Business Day" means any day other than a Saturday, Sunday or
other day on which banking institutions in The City of New York are authorized
or obligated by law or executive order to close.
"Clearing Agency" means an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Securities Exchange Act of
1934, as amended, that is acting as depositary for the Series A Preferred
Securities and in whose name (or nominee's name) shall be registered one or
more global certificates representing Series A Preferred Securities and which
shall undertake to effect book-entry transfers and pledges of interests in the
Series A Preferred Securities.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of interests in
securities deposited with the Clearing Agency.
"Conversion Agent" has the meaning set forth in Section 8(c)
hereof.
"Conversion Date" has the meaning set forth in Section 8(b)
hereof.
"Conversion Expiration Date" has the meaning set forth in
Section 8(d)(ii) hereof.
"Conversion Price" has the meaning set forth in Section 8(a)
hereof.
"Current Market Price" of shares of American General Common
Stock for any day means the last reported sale price, regular way, on such day,
or, if no sale takes place on such day, the average of the reported closing bid
and asked prices on such day, regular way, in either case as reported on the
NYSE Composite Tape, or, if the American General Common Stock is not listed or
admitted to trading on the NYSE, on the principal national securities exchange
on which the American General Common Stock is listed or admitted to trading, or
if the American General Common Stock is not listed or admitted to trading on a
national securities exchange, on the National Market System of the National
Association of Securities Dealers, Inc., or, if the American General Common
Stock is not quoted or admitted to trading on such quotation system, on the
principal quotation system on which the American General Common Stock is listed
or admitted to trading or quoted, or, if not listed or admitted to trading or
quoted on any national securities exchange or quotation system, the average of
the closing bid and asked prices of the American General Common Stock in the
over-the-counter market on the day in question as reported by the National
Quotation Bureau Incorporated, or a similar generally accepted reporting
service, or, if not so available in such manner, as furnished by any NYSE
member firm selected from time to time by the Board of Directors of American
General for that purpose or, if
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<PAGE> 3
not so available in such manner, as otherwise determined in good faith by such
Board of Directors.
"Dividend Payment Date" has the meaning set forth in Section
4(b) hereof.
"Exchange Election" has the meaning set forth in Section 9(c)
hereof.
"Exchange Event" has the meaning set forth in Section 9(b)
hereof.
"Exchange Price" means one share of American General Preferred
Stock for each $_____ principal amount of Series A Debentures.
"Guarantee" means the Guarantee Agreement dated as of
_____________, 1995, executed and delivered by American General for the benefit
of the holders from time to time of the Series A Preferred Securities and other
Preferred Securities of the Company, as amended from time to time.
"Holders" means the registered holders of the Series A
Preferred Securities as they appear on the books and records of the Company.
"Investment Company Event" means that a change in any
applicable United States law or regulation or in the interpretation thereof
(including but not limited to the enactment or imminent enactment of any
legislation, the publication of any judicial decisions, regulatory rulings,
regulatory procedures, or notices or announcements (including notices or
announcements of intent to adopt such procedures or regulations), or a change
in the official position or the interpretation of any law or regulation by any
legislative body, court, governmental authority or regulatory body,
irrespective of the manner in which such change is made known) shall have
occurred after ______________, 1995, and that the Company or American General
shall have received an opinion of nationally recognized independent legal
counsel experienced in practice under the Investment Company Act of 1940, as
amended (the "1940 Act"), that, as a result of such change, there exists more
than an insubstantial risk that the Company is or will be considered an
"investment company" which is required to be registered under the 1940 Act.
"Liquidation Distribution" has the meaning set forth in
Section 7 hereof.
"Notice of Conversion" has the meaning set forth in Section
8(b) hereof.
"Notice of Conversion Expiration" has the meaning set forth in
Section 8(d)(iii) hereof.
"Notice of Exchange" has the meaning set forth in Section 6(a)
hereof.
"Notice of Exchange Election" has the meaning set forth in
Section 9(a) hereof.
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<PAGE> 4
"Notice of Redemption" has the meaning set forth in Section
6(a) hereof.
"NYSE" means the New York Stock Exchange, Inc.
"Press Release" has the meaning set forth in Section 8(d)(ii)
hereof.
"Redemption Price" has the meaning set forth in Section 5(a)
hereof.
"Securities Act" means the Securities Act of 1933, as amended.
"Series A Debentures" means the $__________ aggregate
principal amount (or up to $__________ aggregate principal amount if and to the
extent the over-allotment option granted by the Company to the underwriters of
the Series A Preferred Securities is exercised) of American General's ___%
Series A Convertible Junior Subordinated Debentures due 2025 issued pursuant to
the Indenture and sold by American General to the Company in connection with
the issuance and sale by the Company of the Series A Preferred Securities.
"Series A Preferred Securities" has the meaning set forth in
Section 2 hereof.
"Tax Event" means that a change in any applicable United
States law or regulation or in the interpretation thereof (including but not
limited to the enactment or imminent enactment of any legislation, the
publication of any judicial decisions, regulatory rulings, regulatory
procedures, or notices or announcements (including notices or announcements of
intent to adopt such procedures or regulations), or a change in the official
position or the interpretation of any law or regulation by any legislative
body, court, governmental authority or regulatory body, irrespective of the
manner in which such change is made known) shall have occurred after
____________, 1995, and that the Company or American General shall have
received an opinion of nationally recognized independent legal counsel
experienced in such matters that, as a result of such change, there exists more
than an insubstantial risk that (i) the Company will be subject to federal
income tax with respect to the interest received on the Series A Debentures,
(ii) American General will be precluded from deducting the interest paid on the
Series A Debentures for federal income tax purposes or (iii) the Company will
be subject to more than a de minimis amount of other taxes, duties or other
governmental charges.
"Trading Day" means, with respect to any security listed or
admitted to trading on the NYSE, any day on which such securities are traded on
the NYSE, or, if such security is not listed or admitted to trading on the
NYSE, on the principal national securities exchange on which such security is
listed or admitted to trading, or, if such security is not listed or admitted
to trading on a national securities exchange, on the National Market System of
the National Association of Securities Dealers, Inc., or, if such security is
not quoted or admitted to trading on such quotation system, on the principal
quotation system on which such security is listed or admitted to trading or
quoted, or, if not listed or admitted to trading or quoted on any national
securities exchange or quotation system, in the over-the-counter market.
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<PAGE> 5
2. Designation. A total of ______________ Preferred Securities,
Series A (or up to ________________________ of a series of
__________________________ Preferred Securities, Series A if and to the extent
the over-allotment option granted by the Company to the related underwriters is
exercised) with a liquidation preference of $________ per Preferred Security
are hereby authorized and designated as "___________________________________
Preferred Securities, Series A" (collectively, the "Series A Preferred
Securities").
3. Voting. Except as otherwise provided in the Delaware Limited
Liability Company Act, 6 Del. C. Section 18-101, et seq., as amended, the
Agreement (including, without limitation, Section 8.1 thereof) or this Written
Action, Preferred Members holding the Series A Preferred Securities shall have,
with respect to such Series A Preferred Securities, no right or power to vote
on any question or matter or in any proceeding or to be represented at, or to
receive notice of, any meeting of Members.
4. Dividends. (a) The Holders shall be entitled to receive,
when, as and if declared by the Company out of funds legally available
therefor, cumulative cash dividends at a rate per annum of ____% of the
liquidation preference of $______ per Series A Preferred Security. The amount
of dividends payable for a full monthly dividend period shall be computed on
the basis of a 360-day year consisting of 12 months of 30 days each, and for
any period shorter than a full monthly dividend period, shall be computed on
the basis of the actual number of days elapsed in such period. Dividends shall
accrue from _________________, 1995, and shall be payable in United States
dollars monthly in arrears on the last day of each calendar month of each year,
commencing _________________, 1995. Dividends shall accrue and be cumulative
whether or not they have been earned or declared and whether or not there are
funds of the Company legally available for the payment of dividends. Upon any
dividend arrearages in respect of the Series A Preferred Securities, the
Company shall declare and pay Additional Dividends in order to provide, in
effect, monthly compounding on such dividend arrearages at a rate of ____% per
annum compounded monthly and such Additional Dividends shall accumulate. In
the event that any date on which dividends are payable on the Series A
Preferred Securities is not a Business Day, then payment of the dividend
payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay), except that if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date.
(b) Dividends on the Series A Preferred Securities must
be declared monthly and be paid on the last day of each calendar month (each a
"Dividend Payment Date") to the extent that the Company has, on such date, (x)
funds legally available for the payment of such dividends and (y) cash on hand
sufficient to make such payments, it being understood that to the extent that
funds are not available to pay in full all accumulated and unpaid dividends,
the Company may pay partial dividends to the extent of funds legally available
therefor. For purposes of this Section 4(b), net interest and investment
income from Eligible Investments shall be considered funds available for the
payment of dividends; provided, however, that the principal amount of Eligible
Investments shall not be available as distributions as dividends or otherwise
except in connection with a Liquidation
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<PAGE> 6
Distribution pursuant to Section 15.4 of the Agreement. Dividends will be
payable to the Holders as of the relevant record dates, which, if and so long
as the Series A Preferred Securities are represented by one or more global
certificates through the book-entry system of a Clearing Agency, will be one
Business Day prior to the related Dividend Payment Dates. In the event that
the Series A Preferred Securities shall not continue to be so represented, the
Managing Member shall have the right to select relevant record dates that are
more than one Business Day prior to the related Dividend Payment Dates. In
addition, if American General has extended an interest payment period with
respect to the Series A Debentures pursuant to the Indenture, thereby resulting
in the deferral of the payment of dividends on the Series A Preferred
Securities, the Managing Member shall notify the Holders in writing as to such
extended interest payment period no later than the last date on which notice
would be required to be given to the NYSE of the related record date or
Dividend Payment Date.
(c) In the event of an election by a Holder to convert
its Series A Preferred Securities through the Conversion Agent into American
General Common Stock pursuant to Section 8 hereof, neither American General nor
the Company shall make, or be required to make, any payment, allowance or
adjustment with respect to accumulated and unpaid dividends, whether or not in
arrears, on such converted Series A Preferred Securities, except that Holders
at the close of business on a record date for the payment of dividends on the
Series A Preferred Securities will be entitled to receive the dividend payable
on such Series A Preferred Securities on the related Dividend Payment Date
notwithstanding the conversion of such Series A Preferred Securities into
American General Common Stock following such record date but prior to such
Dividend Payment Date.
5. Redemption and Exchange. (a) If at any time following the
Conversion Expiration Date, less than ten percent (10%) of the aggregate number
of Series A Preferred Securities issued hereunder remains outstanding, such
Series A Preferred Securities shall be redeemable at the option of the Company
(subject to the prior consent of American General), in whole but not in part,
at a cash redemption price equal to the liquidation preference for such Series
A Preferred Securities plus accumulated and unpaid dividends (whether or not
earned or declared), including any Additional Dividends, to the date fixed for
redemption thereof (the "Redemption Price"). American General shall have the
right to cause the Company to exercise such redemption option.
(b) Upon repayment by American General of the principal
of the Series A Debentures at stated maturity, earlier redemption or otherwise,
including as a result of the acceleration of the Series A Debentures upon the
occurrence of an Event of Default under the Indenture with respect to the
Series A Debentures, the Series A Preferred Securities shall be subject to
mandatory redemption, in whole but not in part, by the Company, and the
proceeds from such repayment shall be applied to redeem the Series A Preferred
Securities at the Redemption Price (unless such proceeds are used to fund the
aggregate Liquidation Distributions on the Series A Preferred Securities in
connection with the liquidation, dissolution or winding-up of the Company). In
case of such repayment, the Series A Preferred Securities will only be redeemed
when repayment of the Series A Debentures has actually been received by the
Company.
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<PAGE> 7
(c) The Series A Preferred Securities shall be redeemable
at the option of the Company (subject to the prior consent of American
General), in whole or in part from time to time, on or after _____________,
2003 at the Redemption Price. The Company may not redeem the Series A
Preferred Securities in part unless all accumulated and unpaid dividends
(whether or not earned or declared), including any Additional Dividends, have
been paid in full on all Series A Preferred Securities for all monthly dividend
periods terminating on or prior to the date of redemption. American General
shall have the right to cause the Company to exercise such redemption option.
(d) At any time after the occurrence of a Tax Event or an
Investment Company Event, the Company (subject to the prior consent of American
General) may exchange, in whole but not in part, the Series A Preferred
Securities for Series A Debentures having an aggregate principal amount and
accrued and unpaid interest equal to the Redemption Price. Upon any such
exchange, American General will use its best efforts to have the Series A
Debentures listed on the NYSE or, if the Series A Preferred Securities are not
then listed on the NYSE, such other exchange on which the Series A Preferred
Securities may then be listed. American General shall have the right to cause
the Company to exercise its right to effect any such exchange for Series A
Debentures.
(e) Subject to applicable law, American General or its
subsidiaries may at any time and from time to time purchase outstanding Series
A Preferred Securities by tender, in the open market or otherwise.
6. Redemption and Exchange Procedures. (a) Notice of any
redemption (optional or mandatory) of the Series A Preferred Securities (a
"Notice of Redemption") and notice of any exchange of the Series A Preferred
Securities for Series A Debentures (a "Notice of Exchange") shall be irrevocable
and shall be given by the Company by mail not fewer than 30 nor more than 60
calendar days prior to the date fixed for redemption or exchange thereof to
American General and (i) with respect to a Notice of Redemption, to each Holder
of Series A Preferred Securities that are being redeemed and (ii) with respect
to a Notice of Exchange, to each Holder of Series A Preferred Securities. For
purposes of the calculation of the date of redemption or exchange and the dates
on which notices are given pursuant to this Section 6(a), a Notice of Redemption
or Notice of Exchange shall be deemed to be given on the day such notice is
first mailed by first-class mail, postage prepaid, to each appropriate Holder of
Series A Preferred Securities. A Notice of Redemption or Notice of Exchange
shall be addressed to each appropriate Holder of Series A Preferred Securities
at the address of such Holder appearing in the books and records of the Company.
If all of the Series A Preferred Securities are represented by Book-Entry
Interests, Notices of Redemption or Notices of Exchange shall be sent to the
Clearing Agency. No defect in the Notice of Redemption or Notice of Exchange or
in the mailing thereof with respect to any Series A Preferred Security shall
affect the validity of the redemption or exchange proceedings with respect to
any other Series A Preferred Security.
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<PAGE> 8
(b) If the Company issues a Notice of Redemption, then,
by 12:00 noon, New York time, on the date fixed for redemption, American
General will repay to the Company an aggregate principal amount of the Series A
Debentures, which, together with accrued and unpaid interest thereon, will be
an amount sufficient to pay the Redemption Price for the Series A Preferred
Securities to be redeemed. If the Series A Preferred Securities are
represented by Book-Entry Interests, the Company shall irrevocably deposit such
funds on the date fixed for redemption with the Clearing Agency and give the
Clearing Agency irrevocable instructions and authority to pay the Redemption
Price to the Holders of the Series A Preferred Securities to be redeemed, and
if the Series A Preferred Securities are not represented by Book-Entry
Interests, the Company shall irrevocably deposit such funds with the paying
agent for the Series A Preferred Securities and give such paying agent such
irrevocable instructions and authority to pay the Redemption Price to the
Holders of the Series A Preferred Securities to be redeemed. If a Notice of
Redemption shall have been given and funds irrevocably deposited as required,
then immediately prior to the close of business on the date of such deposit,
all rights of the Holders of such Series A Preferred Securities so called for
redemption will cease, except the right of such Holders to receive the
Redemption Price, but without additional interest from and after such
redemption date. In the event that any date fixed for redemption of Series A
Preferred Securities is not a Business Day, then payment of the Redemption
Price payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay), except that if such Business Day falls in the next calendar year, such
payment will be made on the immediately preceding Business Day. In the event
that payment of the Redemption Price is improperly withheld or refused and not
paid either by the Company or by American General (pursuant to the Guarantee),
dividends on the Series A Preferred Securities called for redemption (including
any Additional Dividends) will continue to accumulate at the then applicable
rate, from the original redemption date to the date that the Redemption Price
is actually paid and the Holders of such Series A Preferred Securities may
exercise all of their rights as Holders thereof.
(c) If the Company issues a Notice of Exchange, then
following the date fixed for the exchange of Series A Preferred Securities for
Series A Debentures (as set forth in the Notice of Exchange), (i) the Series A
Preferred Securities will no longer be deemed to be outstanding, (ii)
certificates representing Series A Debentures will be issued to holders of
certificates representing Series A Preferred Securities, upon surrender of such
certificates to the Company or its agent for exchange, (iii) any certificates
representing Series A Preferred Securities not so surrendered for exchange will
be deemed to represent Series A Debentures having a principal amount and
accrued and unpaid interest equal to the Redemption Price of such Series A
Preferred Securities until such certificates are so surrendered (and until such
certificates are so surrendered, no payments of interest or principal will be
made with respect to such Series A Debentures) and (iv) all rights of Holders
of Series A Preferred Securities will cease, except the right of such Holders
to receive Series A Debentures upon surrender of certificates representing
Series A Preferred Securities.
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<PAGE> 9
7. Liquidation Rights. In the event of any voluntary or
involuntary liquidation, dissolution or winding-up of the Company (other than
in connection with the exchange of the Series A Preferred Securities for the
Series A Debentures as set forth in Section 5(d) or for American General
Preferred Stock as set forth in Section 9), the Holders of Series A Preferred
Securities then outstanding will be entitled to receive out of the net assets
of the Company (including any Eligible Investments or amounts deposited in the
Eligible Investment Account) legally available for distribution to Members
after satisfaction of liabilities of creditors as required by the Delaware Act
but before any distribution of assets is made with respect to any Interest in
the Company ranking junior to the Series A Preferred Securities as to the
distribution of assets upon such liquidation, dissolution or winding-up, but
together with Preferred Members holding Preferred Securities or any other
Interests in the Company then outstanding ranking pari passu with the Series A
Preferred Securities as to the distribution of assets upon such liquidation,
dissolution or winding-up, an amount equal to the aggregate of the liquidation
preference of $______ per Series A Preferred Security plus all accumulated and
unpaid Dividends (whether or not earned or declared), including any Additional
Dividends, to the date of payment (the "Liquidation Distribution"). A merger,
consolidation, replacement, conveyance, transfer or lease in accordance with
the provisions of Section 2.8 of the Agreement shall not be deemed to be a
liquidation, dissolution or winding-up of the Company for purposes of this
Section 7.
8. Conversion Rights. The Holders of Series A Preferred
Securities shall have the right, at their option, at any time before the close
of business on the Conversion Expiration Date, to cause the Conversion Agent to
convert Series A Preferred Securities, on behalf of the converting Holders,
into shares of American General Common Stock in the manner described herein and
subject to the following terms and conditions:
(a) The Series A Preferred Securities will be convertible
at the office of the Conversion Agent into validly issued, fully paid and
nonassessable shares of American General Common Stock pursuant to the Holder's
direction to the Conversion Agent (i) to exchange such Series A Preferred
Securities for a portion of the Series A Debentures theretofore held by the
Company on the basis of one Series A Preferred Security per $______ principal
amount of the Series A Debentures, and (ii) to immediately convert such amount
of Series A Debentures into validly issued, fully paid and nonassessable shares
of American General Common Stock at an initial conversion rate of ___ shares of
American General Common Stock per $______ principal amount of Series A
Debentures (equivalent to a conversion price of $______ per share of American
General Common Stock), subject to those adjustments set forth in the terms of
the Series A Debentures (as so adjusted, "Conversion Price").
(b) In order to convert Series A Preferred Securities
into American General Common Stock as contemplated in Section 8(a) hereof, a
Holder shall surrender the Series A Preferred Securities to be converted to the
Conversion Agent, together with an irrevocable notice of conversion (i) setting
forth the number of Series A Preferred Securities to be converted and the name
or names, if other than the Holder, in which the shares of American General
Common Stock and of any Series A Preferred Securities not to be so converted
are to be issued (subject to compliance with applicable legal
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<PAGE> 10
requirements if any of such certificates are to be issued in a name other than
the name of the Holder), (ii) directing the Conversion Agent (a) to exchange
such Series A Preferred Securities for a portion of the Series A Debentures
held by the Company (at the rate of exchange specified in Section 8(a) hereof)
and (b) to immediately convert such Series A Debentures, on behalf of such
Holder, into American General Common Stock (at the Conversion Price specified
in Section 8(a) hereof) and (iii) setting forth the address or addresses to
which such Holder wishes delivery to be made of such certificate or
certificates for American General Common Stock to be issued upon such
conversion (the "Notice of Conversion"). Holders may obtain copies of the
required form of the Notice of Conversion from the Conversion Agent. If the
Notice of Conversion is received by the Conversion Agent before the close of
business on the Conversion Expiration Date, the Conversion Agent shall notify
the Company of the Holder's election to exchange Series A Preferred Securities
for a portion of the Series A Debentures held by the Company and the Company
shall, upon receipt of such notice, deliver to the Conversion Agent the
specified principal amount of Series A Debentures for conversion in accordance
with this Section 8. The Conversion Agent shall thereupon notify American
General of the Holder's election to convert such Series A Debentures into the
specified number of shares of American General Common Stock. Series A
Preferred Securities shall be deemed to have been converted immediately prior
to the close of business on the day on which a Notice of Conversion relating to
such Series A Preferred Securities is received by the Conversion Agent in
accordance with the foregoing provision (the "Conversion Date"). The Person or
Persons entitled to receive the American General Common Stock issuable upon
conversion of the Series A Debentures shall be treated for all purposes as the
record holder or holders of such American General Common Stock at such time.
No fractional shares of American General Common Stock will be issued as a
result of conversion, but in lieu thereof such fractional interest will be paid
in cash by American General. As promptly as practicable on or after the
Conversion Date, American General shall issue and deliver at the office of the
Conversion Agent a certificate or certificates for the number of full shares of
American General Common Stock issuable upon such conversion, together with the
cash payment, if any, in lieu of any fractional share of American General
Common Stock, whereupon the Conversion Agent shall distribute such certificate
or certificates and cash payment, if any, to the Person or Persons entitled to
receive the same at the address or addresses specified in the Notice of
Conversion.
(c) Each Holder of a Series A Preferred Security by his
acceptance thereof appoints the transfer agent for the Series A Preferred
Securities as "Conversion Agent" for the purpose of effecting the conversion of
Series A Preferred Securities in accordance with this Section 8 and the
exchange of Series A Preferred Securities for American General Preferred Stock
in accordance with Section 9 hereof. In effecting the conversion and exchange
transactions described in this Section 8 and Section 9 hereof, the Conversion
Agent shall be acting as agent of the Holders of Series A Preferred Securities
directing it to effect such conversion or exchange transactions. The
Conversion Agent is hereby authorized (i) to exchange Series A Preferred
Securities from time to time for Series A Debentures held by the Company in
connection with the conversion or exchange of such Series A Preferred
Securities in accordance with this Section 8 and Section 9 hereof, (ii) to
convert all or a portion of the Series A Debentures into American General
Common Stock
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<PAGE> 11
and thereupon to deliver such shares of American General Common Stock, all in
accordance with the provisions of this Section 8, and to deliver to the Company
a new Series A Debenture or Debentures for any resulting unconverted principal
amount and (iii) to exchange all of the Series A Debentures for shares of
American General Preferred Stock and thereupon to deliver such shares of
American General Preferred Stock, all in accordance with the provisions of
Section 9 hereof.
(d) (i) On and after ________________, 1999, the Company
shall have the right, at its option, to cause the conversion rights of
Holders of the Series A Preferred Securities set forth in this Section
8 to expire if (x) the Company shall have paid in full all accumulated
and unpaid dividends (whether or not earned or declared), including any
Additional Dividends, on all of the Series A Preferred Securities for
all dividend periods terminating on or prior to such date and (y) for
20 Trading Days within any period of 30 consecutive Trading Days,
including the last Trading Day of such period, the Current Market Price
of the American General Common Stock on each of such 20 Trading Days
shall have exceeded 120% of the Conversion Price in effect on such
Trading Day. American General shall have the right to cause the
Company to exercise such conversion expiration option.
(ii) In order to exercise its option to cause the
conversion rights of Holders to expire, the Company must issue a press
release for publication on the Dow Jones News Service (the "Press
Release") prior to the opening of business on the second Trading Day
after any period in which the conditions in Section 8(d)(i) have been
met, which shall state that the Company has elected to exercise its
right to extinguish the conversion rights of Holders of Series A
Preferred Securities, specify the Conversion Expiration Date and
provide the Conversion Price and the Current Market Price of the
American General Common Stock, in each case as of the close of
business on the Trading Day next preceding the date of the Press
Release. If the Company exercises the option described in this
Section 8(d), the "Conversion Expiration Date" shall be the close of
business on a date selected by the Company which shall be not less
than 30 or more than 60 calendar days after the date on which the
Company issues the Press Release; provided, however, that if the
Company does not exercise the option described in this Section 8(d),
the "Conversion Expiration Date" with respect to any Series A
Preferred Securities called for redemption shall be the close of
business on the third Business Day prior to the scheduled date for
redemption pursuant to Section 5 hereof.
(iii) In addition to the Press Release, notice of the
expiration of conversion rights of Holders of the Series A Preferred
Securities (a "Notice of Conversion Expiration") must be given by the
Company by first-class mail to each Holder of Series A Preferred
Securities not more than four Business Days after the Company issues
the Press Release. Each such mailed Notice of Conversion Expiration
shall state: (1) the Conversion Expiration Date; (2) the Conversion
Price of the Series A Preferred Securities and the Current Market
Price of the American General Common Stock, in each case as of the
close of business on the Trading Day next preceding the date of the
Press Release; (3) the place or places at which Series A
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Preferred Securities are to be surrendered prior to the Conversion
Expiration Date for certificates representing shares of American
General Common Stock; and (4) such other information or instructions
as the Company deems necessary or advisable to enable a Holder to
exercise its conversion right hereunder. For purposes of the
calculation of the Conversion Expiration Date and the dates on which
notices are given pursuant to this Section 8(d)(iii), a Notice of
Conversion Expiration shall be deemed to be given on the day such
notice is first mailed by first-class mail, postage prepaid, to each
Holder of Series A Preferred Securities at the address of such Holder
appearing in the books and records of the Company (whether or not any
such Holder receives the Notice of Conversion Expiration). No defect
in the Notice of Conversion Expiration or in the mailing thereof with
respect to any Series A Preferred Security shall affect the validity
of such notice with respect to any other Series A Preferred Security.
As of the close of business on the Conversion Expiration Date, the
Series A Preferred Securities shall be deemed to be non-convertible
securities.
(e) No fractional shares of American General Common Stock
will be issued as a result of conversion, but in lieu thereof, such fractional
interest will be paid in cash by American General to the Conversion Agent,
which in turn will make such payment to the Holder or Holders of Series A
Preferred Securities so converted.
(f) American General shall at all times reserve and keep
available out of its authorized and unissued American General Common Stock,
solely for issuance upon the conversion of the Series A Debentures, free from
any preemptive or other similar rights, such number of shares of American
General Common Stock as shall from time to time be issuable upon the conversion
of all the Series A Debentures then outstanding. Notwithstanding the
foregoing, American General shall be entitled to deliver upon conversion of
Series A Debentures, shares of American General Common Stock reacquired and
held in the treasury of American General (in lieu of the issuance of authorized
and unissued shares of American General Common Stock), so long as any such
treasury shares are free and clear of all liens, charges, claims, equities,
security interests or encumbrances. Any shares of American General Common
Stock issued and delivered upon conversion of the Series A Debentures and
exchange of the Series A Preferred Securities shall be duly authorized, validly
issued, fully paid and nonassessable. The Conversion Agent shall deliver the
shares of American General Common Stock received upon conversion of the Series
A Debentures and exchange of the Series A Preferred Securities to the
converting Holder, free and clear of all liens, charges, claims, equities,
security interests and encumbrances, except for United States withholding
taxes. Each of American General and the Company shall use its best efforts to
obtain and keep in force such governmental or regulatory permits or other
authorizations as may be required by law, and shall comply with all applicable
requirements as to registration or qualification of the American General Common
Stock (and all listing requirements of any stock exchange on which the American
General Common Stock is then listed that are at the time applicable), in order
to enable American General to lawfully issue and deliver such number of shares
of American General Common Stock to the Conversion Agent as shall from time to
time be sufficient to effect the conversion of all of the Series A Debentures
and the Conversion Agent to lawfully deliver the American General Common
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Stock upon conversion of the Series A Preferred Securities to the Person or
Persons entitled thereto.
(g) American General will pay any and all taxes that may
be payable in respect of the issue or delivery of shares of American General
Common Stock upon conversion of Series A Debentures and exchange of the Series
A Preferred Securities. American General shall not, however, be required to
pay any tax which may be payable in respect of any transfer involved in the
issue and delivery of shares of American General Common Stock in a name other
than the name of any Holder of Series A Preferred Securities so converted, and
no such issue or delivery shall be made unless and until the Holder requesting
such conversion has paid to the Conversion Agent the amount of any such tax or
has established to the satisfaction of the Conversion Agent that such tax has
been paid.
(h) Nothing in Section 8(g) shall limit the requirement
of the Company or the Conversion Agent to withhold taxes pursuant to applicable
law or otherwise require the Managing Member, the Company, American General or
the Conversion Agent to pay any amounts on account of such withholdings.
9. Optional Exchange For American General Preferred Stock. (a)
Upon the occurrence of an Exchange Event, the Holders of a Majority in
Liquidation Preference of the Series A Preferred Securities, voting at a
meeting of Holders called for such purpose or by written consents, may, at
their option, direct the Conversion Agent to (i) exchange all (but not less
than all) of the Series A Preferred Securities then outstanding for Series A
Debentures held by the Company at the rate of one Series A Preferred Security
for each $_____ principal amount of Series A Debentures, (ii) immediately
exchange such Series A Debentures, on behalf of the Holders, for shares of
American General Preferred Stock, at the Exchange Price and (iii) distribute
such shares of American General Preferred Stock to the Holders. Upon receipt
of such directions from such Holders (the "Notice of Exchange Election"), the
Conversion Agent shall promptly notify the Company, American General and the
trustee under the Indenture of an Exchange Election by delivering copies of the
Notice of Exchange Election to such Persons. The Company, upon receipt of such
Notice of Exchange Election, shall deliver the requisite principal amount of
Series A Debentures to the Conversion Agent in exchange for the Series A
Preferred Securities. American General, upon receipt of such Notice of
Exchange Election, shall, in exchange for the corresponding principal amount of
the Series A Debentures, issue certificates for the number of shares of
American General Preferred Stock issuable at the Exchange Price in the names of
the Holders of Series A Preferred Securities designated in such Notice of
Exchange Election.
(b) The failure of the Holders of Series A Preferred
Securities to receive, for 15 consecutive months, the full amount of dividends,
including arrearages and any Additional Dividends, on the Series A Preferred
Securities (including any such failure caused by an extension of an interest
payment period on the Series A Debentures), shall constitute an "Exchange
Event."
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(c) As soon as practicable, but in no event later than 30
calendar days after the occurrence of an Exchange Event, the Managing Member
shall, upon not less than 15 calendar days' written notice by first-class mail
to the Holders of Series A Preferred Securities, convene a meeting of the
Holders of the Series A Preferred Securities (an "Exchange Election Meeting")
to determine whether to cause the Conversion Agent to exchange all of the
Series A Preferred Securities then outstanding for Series A Debentures held by
the Company and immediately exchange such Series A Debentures, on behalf of the
Holders, for shares of American General Preferred Stock in the manner set forth
in Section 9(a) hereof. If the Managing Member fails to convene such Exchange
Election Meeting within such 30-day period, the Holders of at least 10% in
Liquidation Preference of the Series A Preferred Securities will be entitled to
convene such Exchange Election Meeting. Upon the affirmative vote of the
Holders of a Majority in Liquidation Preference of the Series A Preferred
Securities at such Exchange Election Meeting or, in the absence of such
meeting, upon receipt by the Company of written consents signed by the Holders
of a Majority in Liquidation Preference of the Series A Preferred Securities,
an election to exchange all outstanding Series A Preferred Securities on the
basis set forth above (an "Exchange Election") will be deemed to have been
made.
Holders, by becoming Members of the Company pursuant to
Section 2.7 of the Agreement, will be deemed to have agreed to be bound by
these optional exchange provisions in regard to the exchange of Series A
Preferred Securities for American General Preferred Stock pursuant to the terms
set forth above.
(d) American General shall at all times reserve and keep
available out of its authorized and unissued American General Preferred Stock,
solely for issuance upon the exchange of Series A Debentures, free from any
preemptive or other similar rights, such number of shares of American General
Preferred Stock as shall from time to time be issuable upon the exchange of
Series A Debentures pursuant to Section 9(a) hereof. Each of American General
and the Company shall use its best efforts to obtain and keep in force such
governmental or regulatory permits or other authorizations as may be required
by law, and shall comply with all applicable requirements as to registration or
qualification of the American General Preferred Stock in order to enable
American General to lawfully issue and deliver the American General Preferred
Stock to the Conversion Agent upon exchange of the Series A Debentures and the
Conversion Agent to lawfully deliver the American General Preferred Stock upon
exchange of the Series A Preferred Securities to the Person or Persons entitled
thereto. All shares of American General Preferred Stock issued upon exchange
of Series A Debentures and the Series A Preferred Securities shall be duly
authorized, validly issued and fully paid and non-assessable and the terms of
the American General Preferred Stock shall be valid and binding on American
General. American General will use its best efforts to have such shares of
American General Preferred Stock listed on the NYSE or, if the Series A
Preferred Securities are not then listed on the NYSE, such other exchange on
which the Series A Preferred Securities may then be listed. The Conversion
Agent shall deliver the certificates representing shares of American General
Preferred Stock received upon exchange of the Series A Debentures and the
Series A Preferred Securities to the exchanging Holder, free and clear of all
liens, charges, claims, equities, security interests and encumbrances.
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(e) American General will pay any and all taxes that may
be payable in respect of the issue or delivery of shares of American General
Preferred Stock upon exchange of the Series A Debentures and the Series A
Preferred Securities. American General shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the issue
and delivery of shares of American General Preferred Stock in a name other than
the name of any Holder of Series A Preferred Securities so exchanged, and no
such issue or delivery shall be made unless and until the Holder requesting
such exchange has paid to the Conversion Agent the amount of any such tax or
has established to the satisfaction of the Conversion Agent that such tax has
been paid.
(f) Series A Preferred Securities shall be deemed to have
been exchanged immediately prior to the close of business on the day on which
the Exchange Election is made. The Person or Persons entitled to receive the
certificates representing shares of American General Preferred Stock issuable
upon exchange of the Series A Debentures and the Series A Preferred Securities
shall be treated for all purposes as the record holder or holders of such
American General Preferred Stock at such time. As promptly as practicable on
or after the date on which the Exchange Election is made, American General
shall issue and deliver at the office of the Conversion Agent a certificate or
certificates for the number of full shares of American General Preferred Stock
issuable upon such exchange, whereupon the Conversion Agent shall promptly
distribute such certificate or certificates to the Person or Persons entitled
to receive the same.
(g) Nothing in Section 9(e) shall limit the requirement
of the Company or the Conversion Agent to withhold any taxes as may be required
by applicable law or otherwise require the Managing Member, the Company,
American General or the Conversion Agent to pay any amounts on account of such
withholdings.
10. Sinking Fund. The Series A Preferred Securities shall not be
subject to the operation of a retirement or sinking fund.
11. Guarantee of Liabilities. It shall be a condition precedent
to the issuance of the Series A Preferred Securities that American General
execute and deliver to the Company the Guarantee, the Indenture and the Series
A Debentures.
12. Book-Entry-Only Issuance. (a) The Depository Trust Company,
New York, New York ("DTC"), will initially act as the Clearing Agency. The
Series A Preferred Securities will be issued only as fully-registered
securities and will be initially registered in the name of Cede & Co. (DTC's
partnership nominee).
(b) Redemption notices shall be sent to Cede & Co. or any
successor thereof. If less than all of the Series A Preferred Securities are
being redeemed, such securities shall be redeemed in accordance with DTC's then
current practice.
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(c) DTC may discontinue providing its services as
Clearing Agency with respect to the Series A Preferred Securities by giving
reasonable notice to the Company as provided in the agreement between the
Company and DTC. Under such circumstances, if a successor Clearing Agency is
not obtained, the Company at its expense shall cause certificates for Series A
Preferred Securities to be printed and delivered as promptly as practicable.
If an Event of Default occurs under the Indenture with respect to the Series A
Debentures or if the Company (with the consent of American General) decides to
discontinue use of the system of book-entry transfers through DTC (or a
successor Clearing Agency), the Company at its expense shall cause certificates
for Series A Preferred Securities to be printed and delivered to the beneficial
owners of the Series A Preferred Securities as promptly as practicable.
(d) In the event that the Series A Preferred Securities
do not remain in book-entry-only form, the following provisions will apply:
(i) Registration of transfers of Series A Preferred
Securities will be effected without charge by or on behalf of the
Company, but upon payment (and/or the giving of such indemnity as the
Company or the Managing Member may require) in respect of any tax or
other governmental charges which may be imposed in connection
therewith.
(ii) Exchanges of Series A Preferred Securities for Series
A Debentures will be effected without charge by or on behalf of the
Company, but upon payment (and/or the giving of such indemnity as the
Company or the Managing Member may require) in respect of any tax or
other governmental charges which may be imposed in connection with the
issuance of any Series A Debenture in the name of any person other
than the Holder of the Series A Preferred Security for which the
Series A Debenture is being exchanged or for any reason other than
such exchange.
(iii) The Company will not be required to register or cause
to be registered the transfer of Series A Preferred Securities after
such Series A Preferred Securities have been called for redemption or
exchange.
13. Registrar and Transfer Agent. The Company hereby appoints
Chemical Mellon Shareholder Services, LLC as its initial registrar, transfer
agent, paying agent and Conversion Agent for the Series A Preferred Securities.
The Company may at any time designate an additional or substitute registrar,
transfer agent, paying agent and Conversion Agent for the Series A Preferred
Securities and shall promptly notify the Holders of the Series A Preferred
Securities of any such designation.
14. Governing Law. This Written Action shall be governed by and
construed in accordance with the laws of the State of Delaware without giving
effect to the principles of conflict of laws thereof.
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IN WITNESS WHEREOF, the undersigned Managing Member of the Company has
hereto set its hand as of the day and year first above written.
AMERICAN GENERAL DELAWARE
MANAGEMENT CORPORATION
By:
--------------------------------
Name:
Title:
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Exhibit 4(p)
FORM OF GUARANTEE AGREEMENT
THIS GUARANTEE AGREEMENT (this "Guarantee"), dated as of May ____,
1995, is executed and delivered by American General Corporation, a corporation
organized under the laws of the State of Texas ("American General"), for the
benefit of the Holders (as hereinafter defined) from time to time of the
Preferred Securities (as hereinafter defined) of American General Delaware,
L.L.C., a Delaware limited liability company ("American General Delaware").
WHEREAS, American General Delaware intends to issue and sell from time
to time, in one or more series, preferred limited liability company interests
(the "Preferred Securities"), and American General desires to issue this
Guarantee for the benefit of the Holders of the Preferred Securities, as
provided herein;
WHEREAS, American General Delaware will purchase the Junior
Subordinated Debentures (as hereinafter defined) issued pursuant to the Junior
Subordinated Indenture (as hereinafter defined) with substantially all of the
proceeds from the issuance and sale of the Preferred Securities and its other
common limited liability company interests (the "Common Securities"); and
WHEREAS, American General desires hereby to unconditionally and
irrevocably guarantee, to the extent set forth herein, the payment in full to
the Holders of the Guarantee Payments (as hereinafter defined) and the
performance of the other obligations set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of the
Preferred Securities, which purchase American General hereby agrees shall
benefit American General, American General executes and delivers this Guarantee
for the benefit of the Holders.
ARTICLE I
DEFINITIONS
As used in this Guarantee, the terms set forth below shall, unless the
context otherwise requires, have the following meanings. Capitalized terms used
herein but not otherwise defined herein shall have the meanings ascribed to such
terms in the Amended and Restated Limited Liability Company Agreement of
American General Delaware, L.L.C., dated as of May ____, 1995 (the "LLC
Agreement").
1.1 "Additional Dividends" shall mean Dividends (as hereinafter
defined) that shall be declared and paid by American General Delaware on any
Dividend arrearages in respect of the Preferred Securities of any series at the
rate set forth in the Declaration (as hereinafter defined) with respect to such
series of Preferred Securities.
<PAGE> 2
1.2 "American General Common Stock" shall mean the shares of common
stock, par value $.50 per share, of American General.
1.3 "American General Preferred Stock" shall mean the series of
Preferred Stock, par value $1.50 per share, of American General exchangeable for
the related series of Junior Subordinated Debentures.
1.4 "Conversion Agent" shall mean Chemical Bank and its successors (or
such substitute entity as may be designated from time to time by the Manager (as
hereinafter defined), acting as agent of the Holders in effecting the conversion
of Junior Subordinated Debentures into shares of American General Common Stock
or the exchange of Preferred Securities of any series for the related series of
the American General Preferred Stock, in each case as and in the manner set
forth in the LLC Agreement and the Declaration with respect to such series of
Preferred Securities.
1.5 "Declaration" shall mean, with respect to any series of Preferred
Securities, the Written Action adopted by the Manager pursuant to Section 7.1(b)
of the LLC Agreement relating to such series of Preferred Securities.
1.6 "Dividends" shall mean, with respect to any series of Preferred
Securities, the cumulative cash distributions from American General Delaware
with respect to such series of Preferred Securities, accruing and payable in the
manner set forth in the Declaration with respect to such series of Preferred
Securities.
1.7 "Guarantee Payments" shall mean, with respect to any series of
Preferred Securities, the following payments, without duplication, to the extent
not paid by American General Delaware: (a) any accumulated and unpaid Dividends,
including any Additional Dividends, which are required to be paid on such
Preferred Securities, but only if and to the extent that such Dividends have
been declared on such Preferred Securities from funds of American General
Delaware legally available therefor; (b) the Redemption Price (including all
accumulated and unpaid Dividends (whether or not earned or declared), including
any Additional Dividends) payable with respect to any such Preferred Securities
called for redemption by American General Delaware, but only to the extent
payable out of funds of American General Delaware legally available therefor;
and (c) upon the voluntary or involuntary liquidation, dissolution or winding-up
of American General Delaware other than in connection with the exchange of such
Preferred Securities for the related series of Junior Subordinated Debentures,
the lesser of (i) the Liquidation Distribution and (ii) the amount of assets of
American General Delaware available for distribution to Holders of such
Preferred Securities in liquidation, dissolution or winding-up of American
General Delaware.
1.8 "Holder" shall mean the registered holder from time to time of any
Preferred Securities of American General Delaware; provided, however, that in
determining whether the Holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include American General or any majority-owned entity thereof, either
directly or indirectly.
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1.9 "Junior Subordinated Debentures" shall mean the series of Junior
Subordinated Debentures issued by American General pursuant to the Junior
Subordinated Indenture and delivered to American General Delaware in connection
with the issuance and sale by American General Delaware of the related series of
Preferred Securities. The Junior Subordinated Debentures will evidence the loan
made by American General Delaware to American General of substantially all of
the proceeds received by American General Delaware from the issuance and sale of
the related series of Preferred Securities and the Common Securities.
1.10 "Junior Subordinated Indenture" shall mean the Indenture, dated as
of May ____, 1995, between American General and Chemical Bank.
1.11 "Manager" means American General Delaware Management Corporation,
in its capacity as the manager of American General Delaware, or any permitted
successor manager of American General Delaware admitted as such pursuant to the
applicable provisions of the LLC Agreement.
1.12 "Special Trustee" shall mean, with respect to any series of
Preferred Securities, a special trustee appointed by the Holders of the
Preferred Securities of such series pursuant to Section 8.1 of the LLC Agreement
and authorized, among other things, to enforce American General Delaware's
rights under the related series of Junior Subordinated Debentures against
American General and to enforce the obligations undertaken with respect to such
series of Preferred Securities by American General under this Guarantee.
ARTICLE II
GUARANTEE
2.1 GENERAL. American General irrevocably and unconditionally agrees to
pay in full to the Holders of each series of Preferred Securities the Guarantee
Payments with respect to such series of Preferred Securities, as and when due
(except to the extent previously paid by American General Delaware), regardless
of any defense, right of set-off or counterclaim which American General Delaware
may have or assert. American General's obligation to make a Guarantee Payment
may be satisfied by direct payment of the required amounts by American General
to the Holders of such series of Preferred Securities or by causing American
General Delaware to pay such amounts to such Holders.
2.2 WAIVER OF CERTAIN RIGHTS. American General hereby waives, to the
fullest extent permitted by applicable law, notice of acceptance of this
Guarantee and of any liability to which it applies or may apply, presentment,
demand for payment, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
2.3 OBLIGATIONS NOT AFFECTED. The obligations, covenants, agreements
and duties of American General under this Guarantee shall in no way be affected
or impaired by reason of the happening from time to time of any of the
following:
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(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by American General Delaware of any
express or implied agreement, covenant, term or condition relating to
the Preferred Securities of any series to be performed or observed by
American General Delaware;
(b) the extension of time for the payment by American General
Delaware of all or any portion of the Dividends, Additional Dividends,
Redemption Price, Liquidation Distribution or any other sums payable
under the terms of the Preferred Securities of any series or the
extension of time for the performance of any other obligation under,
arising out of, or in connection with, the Preferred Securities of such
series;
(c) any failure, omission, delay or lack of diligence on the
part of the Holders of Preferred Securities of any series or the
Special Trustee to enforce, assert or exercise any right, privilege,
power or remedy conferred on such Holders or such Special Trustee
pursuant to the terms of the Preferred Securities of such series, or
any action on the part of American General Delaware granting indulgence
or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
winding-up, sale of any collateral, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other similar
proceedings affecting, American General Delaware or any of the assets
of American General Delaware;
(e) any invalidity of, or defect or deficiency in, any of the
Preferred Securities of any series;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) to the fullest extent permitted by applicable law, any
other circumstance whatsoever that might otherwise constitute a legal
or equitable discharge or defense of a guarantor, it being the intent
of this Section 2.3 that the obligations of American General hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of any Holders of Preferred Securities to give
notice to, or obtain any consent of, American General with respect to the
happening of any of the foregoing.
2.4 PROCEEDING DIRECTLY AGAINST AMERICAN GENERAL. This Guarantee is a
guarantee of payment and not of collection. A Holder of Preferred Securities of
any series or the Special Trustee may enforce this Guarantee with respect to
such series of Preferred Securities directly against American General, and
American General waives any right or remedy to require that any action be
brought against American General Delaware or any
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<PAGE> 5
other person or entity before proceeding against American General. Subject to
Section 2.5 hereof, all waivers herein contained shall be without prejudice to
the right of a Holder or the Special Trustee, at its option, to proceed against
American General Delaware, whether by separate action or by joinder. American
General agrees that this Guarantee shall not be discharged except by payment of
the Guarantee Payments in full (to the extent not previously paid by American
General Delaware) and by complete performance of all obligations under this
Guarantee.
2.5 SUBROGATION. American General shall be subrogated to all (if any)
rights of the Holders of Preferred Securities against American General Delaware
in respect of any amounts paid to such Holders by American General under this
Guarantee and shall have the right to waive payment by American General Delaware
of any amount of Dividends in respect of which payment has been made to the
Holders by it pursuant to Section 2.1 hereof; provided, however, that American
General shall not (except to the extent required by mandatory provisions of law)
exercise any rights which it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of a payment under
this Guarantee, if, at the time of any such payment, any amounts are due and
unpaid under this Guarantee. If any amount shall be paid to American General in
violation of the preceding sentence, American General agrees to hold such amount
in trust for the Holders and to pay over such amount promptly to the Holders.
2.6 INDEPENDENT OBLIGATIONS. American General acknowledges that its
obligations hereunder are independent of the obligations of American General
Delaware with respect to the Preferred Securities and that American General
shall be liable as principal and sole debtor under this Guarantee to make
Guarantee Payments in full pursuant to the terms of this Guarantee
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 2.3 hereof.
2.7 TERMINATION. This Guarantee shall terminate and be of no further
force and effect as to the Preferred Securities of any series upon (a) full
payment of the Redemption Price of all outstanding Preferred Securities of such
series, (b) the exchange (in the manner provided in the LLC Agreement and the
applicable Declaration) of all of the Preferred Securities of such series for
the Junior Subordinated Debentures and the conversion or exchange (in the manner
provided in the Junior Subordinated Indenture), as the case may be, of Junior
Subordinated Debentures of such series for American General Common Stock or the
series of American General Preferred Stock related to such series of Preferred
Securities, as the case may be, and the related transfer thereof or (c) the
exchange (in the manner provided in the LLC Agreement or such Declaration) of
all of the Preferred Securities of such series for the Junior Subordinated
Debentures of the related series and the transfer thereof. In addition, this
Guarantee will terminate completely upon full payment of the aggregate
Liquidation Distributions applicable to all outstanding series of Preferred
Securities. Notwithstanding the foregoing, this Guarantee shall continue to be
effective or, to the fullest extent permitted by applicable law, shall be
reinstated, as the case may be, with respect to the Preferred Securities of any
series if at any time any Holder of such Preferred Securities must restore
payment of any sums recovered on account of, or
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<PAGE> 6
must redeliver any securities received on account of, such Preferred Securities
or under this Guarantee for any reason whatsoever.
ARTICLE III
CERTAIN COVENANTS OF AMERICAN GENERAL
3.1 DIVIDENDS AND OTHER PAYMENTS. So long as the Preferred Securities
of any series remain outstanding, American General will not declare or pay any
dividend on, and American General will not, and American General will not permit
any of its majority-owned subsidiaries to, redeem, purchase, acquire or make a
liquidation payment with respect to, any of American General's capital stock
(other than (i) acquisitions of shares of American General Common Stock in
connection with the satisfaction by American General of its obligations under
any employee benefit plans or pursuant to any outstanding put contracts, (ii) as
a result of a reclassification of capital stock or the exchange or conversion of
one class or series of capital stock for another class or series of capital
stock, (iii) redemptions of any share purchase rights issued by American General
pursuant to the Rights Agreement dated as of July 27, 1989, as amended from time
to time, or the declaration of a dividend of similar share purchase rights in
the future or (iv) the purchase of fractional interests in shares of capital
stock pursuant to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged) or make any guarantee payments with
respect to the foregoing, if at such time American General has exercised its
option to extend an interest payment period on the series of Junior Subordinated
Debentures related to such series of Preferred Securities and such extension is
continuing, American General is in default with respect to its payment or other
obligations hereunder or there shall have occurred any Event of Default (as
defined in the Junior Subordinated Indenture) with respect to the series of
Junior Subordinated Debentures related to such series of Preferred Securities.
American General shall take all actions necessary to ensure the compliance of
its majority-owned subsidiaries with this Section 3.1.
3.2 CERTAIN OTHER COVENANTS. So long as the Preferred Securities of any
series remain outstanding, American General shall: (a) not cause or permit any
Common Securities to be transferred (other than in connection with a merger or
consolidation of a holder of the Common Securities), (b) maintain direct or
indirect ownership of all outstanding Common Securities and any other limited
liability company interests in American General Delaware other than any series
of Preferred Securities (except as permitted in the LLC Agreement); (c) cause at
least 21% of all interests in the capital, income, gain, loss, deduction and
credit of American General Delaware to be represented by Common Securities; (d)
not voluntarily liquidate, dissolve or wind-up itself (other than following a
transfer of all of American General's assets), the Manager (other than following
a transfer of all or substantially all of its assets) or American General
Delaware (other than in connection with an exchange of all outstanding series of
Preferred Securities for the related series of Junior Subordinated Debentures,
if so provided in the Declaration relating to each such series of Preferred
Securities); (e) except as may be otherwise permitted by the LLC Agreement,
cause American General Delaware Management Corporation to remain the Manager and
to timely perform all of its duties as Manager (including the duty
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to cause American General Delaware to declare and pay dividends on all
outstanding series of Preferred Securities to the extent set forth in the LLC
Agreement and the applicable Declaration), unless a permitted successor Manager
is appointed pursuant to the LLC Agreement; and (f) subject to the terms of the
Preferred Securities of any series, use reasonable efforts to cause American
General Delaware to remain a Delaware limited liability company and otherwise
continue to be treated as a partnership for United States federal income tax
purposes.
ARTICLE IV
STATUS
4.1 STATUS. American General covenants and agrees that this Guarantee
constitutes an unsecured obligation of American General ranking (i) subordinate
and junior in right of payment to all other liabilities of American General
other than the guarantees referred to in clause (ii) or (iii) of this Section
4.1, (ii) pari passu with the most senior preferred stock issued by American
General and with any other guarantee executed by American General in respect of
any preferred stock or interest of any affiliate of American General that
provides that such guarantee is pari passu in right of payment with this
Guarantee and (iii) senior to American General Common Stock and any other class
or series of capital stock issued by American General which by its express terms
ranks junior to the most senior preferred stock issued by American General as to
the payment of dividends or the distribution of assets upon the liquidation,
dissolution or winding-up of American General and any guarantee executed by
American General that provides that such guarantee is junior in right of payment
to this Guarantee.
ARTICLE V
CONVERSION AND EXCHANGE OF PREFERRED SECURITIES
5.1 ISSUANCE OF AMERICAN GENERAL COMMON STOCK. If the Preferred
Securities of any series are convertible into shares of American General Common
Stock pursuant to the applicable Declaration, American General hereby agrees
that, upon the request of the Conversion Agent (on behalf of one or more Holders
of such Preferred Securities), to convert Junior Subordinated Debentures of the
series related to such series of Preferred Securities into American General
Common Stock pursuant to the request of such Holders to effect such conversion
in accordance with the terms of the LLC Agreement and such Declaration, American
General shall deliver to the Conversion Agent certificates representing the
number of full shares of American General Common Stock issuable upon conversion
of such Junior Subordinated Debentures in accordance with the terms of the
Junior Subordinated Indenture and such Junior Subordinated Debentures. American
General shall reserve and keep available out of its authorized and unissued
American General Common Stock (solely for issuance upon the conversion of such
Junior Subordinated Debentures), free of any preemptive or other similar rights,
the number of full shares of American General Common Stock deliverable by the
Conversion Agent to the
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Holders upon the conversion of all outstanding Preferred Securities not
theretofore converted by the Holders.
5.2 VALIDITY OF AMERICAN GENERAL COMMON STOCK. All shares of American
General Common Stock delivered by American General upon such conversion will be
duly authorized, validly issued and fully paid and nonassessable.
5.3 ISSUANCE OF AMERICAN GENERAL PREFERRED STOCK. American General
hereby agrees, upon the making of an Exchange Election (as such term is defined
in the applicable Declaration) by the Holders of a majority of the aggregate
liquidation preference of the outstanding Preferred Securities of the related
series in accordance with the terms of the LLC Agreement and such Declaration,
to issue one share of American General Preferred Stock of the related series in
respect of the applicable principal amount (as set forth in such Declaration) of
Junior Subordinated Debentures of the related series. American General further
agrees, upon receipt of a Notice of Exchange Election (as defined in such
Declaration), to deliver to the Conversion Agent the number of shares of
American General Preferred Stock of the related series issuable upon exchange of
such Junior Subordinated Debentures. American General shall reserve and keep
available out of its authorized and unissued American General Preferred Stock
(solely for issuance upon exchange of such Junior Subordinated Debentures), free
of any preemptive or other similar rights, the number of shares of American
General Preferred Stock of the related series deliverable by the Conversion
Agent to the Holders upon exchange of all outstanding Preferred Securities.
5.4 VALIDITY OF AMERICAN GENERAL PREFERRED STOCK. All such shares of
American General Preferred Stock issued by American General upon such exchange
will be duly authorized, validly issued and fully paid and nonassessable.
5.5 TERMINATION OF OBLIGATION TO ISSUE AMERICAN GENERAL COMMON STOCK.
American General's obligations under this Article V to issue American General
Common Stock shall terminate upon the termination of the right of Holders of
Preferred Securities to request the Conversion Agent to effect such conversion
as set forth in the LLC Agreement and the applicable Declaration(s).
ARTICLE VI
MISCELLANEOUS
6.1 THIRD PARTY BENEFICIARIES. All of American General's obligations
under this Guarantee shall be directly enforceable by the Holders from time to
time of the applicable series of Preferred Securities. Each Holder of Preferred
Securities of the applicable series is an intended third-party beneficiary of
this Guarantee.
6.2 SUCCESSORS AND ASSIGNS. All provisions contained in this Guarantee
shall bind the successors, assigns, receivers, trustees and representatives of
American General and shall inure to the benefit of the Holders. Except as
permitted by Section 6.4, American General shall not assign its rights or
delegate its obligations hereunder without the prior
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approval (obtained in the manner set forth in the LLC Agreement) of the Holders
of not less than 66-2/3% of the aggregate liquidation preference of all
Preferred Securities of all series then outstanding voting as a single class.
6.3 AMENDMENTS. Except with respect to any changes which do not
adversely affect the rights of any Holders of Preferred Securities (in any of
which cases no vote will be required), this Guarantee may be amended with
respect to the Preferred Securities of any series affected by such amendment
only with the prior approval (obtained in the manner set forth in the LLC
Agreement and the applicable Declaration) of the Holders of not less than
66-2/3% of the aggregate liquidation preference of the outstanding Preferred
Securities of such series.
6.4 MERGER OR CONSOLIDATION. American General may consolidate with,
merge with or into, or convey, transfer or lease all or substantially all of its
assets to any other person or entity, provided that such consolidation, merger,
conveyance, transfer or lease is permitted under Section 801 of the Junior
Subordinated Indenture.
6.5 NOTICES. Any notice, request or other communication required or
permitted to be given hereunder to American General shall be given in writing by
delivering the same against receipt therefor by registered mail, hand delivery,
facsimile transmission (confirmed by registered mail) or telex, addressed to
American General, as follows (and if so given, shall be deemed given when
mailed; upon receipt of facsimile confirmation, if sent by facsimile
transmission; or upon receipt of an answer-back, if sent by telex):
American General Corporation
2929 Allen Parkway
Houston, Texas 77019
Attention: Treasury
Telecopy: (713) 522-3487
Any notice, request or other communication required or permitted to be
given hereunder to the Holders shall be given by American General in the same
manner as notices are sent by American General Delaware to the Holders.
6.6 GENDERS. The masculine and neuter genders used herein shall include
the masculine, feminine and neuter genders.
6.7 GUARANTEE NOT SEPARATELY TRANSFERABLE. This Guarantee is solely for
the benefit of the Holders and is not separately transferable from the Preferred
Securities.
6.8 GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
6.9 SEVERABILITY. In case any provision of this Guarantee shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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6.10 HEADINGS. The Article and section headings herein are for
convenience only and shall not affect the construction hereof.
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IN WITNESS WHEREOF, American General has caused this Guarantee to be
duly executed as of the day and year first above written.
AMERICAN GENERAL CORPORATION
By:
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Name:
Title:
ATTEST:
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Secretary
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