<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 31, 1995
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ARISTAR, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE
(STATE OF INCORPORATION)
95-4128205
(I.R.S. EMPLOYER IDENTIFICATION NUMBER)
8900 GRAND OAK CIRCLE
TAMPA, FLORIDA 33637-1050
(813) 632-4500
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
STEPHEN F. ADAMS, ESQ.
GREAT WESTERN FINANCIAL CORPORATION
9200 OAKDALE AVENUE
CHATSWORTH, CALIFORNIA 91311
(818) 775-3391
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
WITH A COPY TO:
ROBIN L. SPEAR, ESQ.
WINTHROP, STIMSON, PUTNAM & ROBERTS
ONE BATTERY PARK PLAZA
NEW YORK, NEW YORK 10004
JOHN E. RILEY, ESQ.
SIMPSON THACHER & BARTLETT
425 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this registration statement as determined by
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/
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<S> <C> <C> <C> <C>
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Proposed
Title of each class Amount Proposed maximum maximum Amount of
of securities to be to be offering price aggregate registration
registered registered per unit(1) offering price (1) fee
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Debt Securities........... $600,000,000 100%(2) $600,000,000(2) $206,897
</TABLE>
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(1) Estimated solely for the purpose of computing the registration fee.
(2) Exclusive of accrued interest, if any.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED MARCH 31, 1995
PROSPECTUS
$600,000,000
[INSERT ARISTAR LOGO]
DEBT SECURITIES
------------------------
Aristar, Inc. (the "Company") may offer from time to time up to
$600,000,000 aggregate principal amount of its debt securities (the "Debt
Securities"). The Debt Securities may be senior Debt Securities (the "Senior
Debt Securities") or senior subordinated Debt Securities (the "Subordinated Debt
Securities"). The Debt Securities will be offered in one or more separate series
in amounts, at prices and on terms to be determined at the time of offering. See
"Plan of Distribution."
The Debt Securities may be issued in registered form without coupons or in
bearer form with or without coupons. In addition, all or a portion of the Debt
Securities may be issued in temporary or definitive global form. Debt Securities
which are Book-Entry Securities (as defined herein) will be issued in global
registered form. Debt Securities in bearer form are subject to United States tax
law requirements, and, subject to certain exceptions, may not be offered, sold
or delivered within the United States or to United States persons (each as
defined herein).
The specific designation, aggregate principal amount, authorized
denominations, maturity, rate (or method of determining the same) and time of
payment of interest, if any, any redemption or repurchase terms, any listing on
a securities exchange, the initial public offering price, the names of, and the
principal amounts to be purchased by or through, underwriters, dealers or
agents, if any, the compensation of such persons and other special terms in
connection with the offering and sale of the series of Debt Securities in
respect of which this Prospectus is being delivered (the "Offered Securities")
are set forth in the accompanying Prospectus Supplement (the "Prospectus
Supplement").
The Senior Debt Securities, when issued, will rank on a parity with all
other unsecured and unsubordinated indebtedness of the Company. The Subordinated
Debt Securities, when issued, will be unsecured and subordinated to all present
and future Senior Debt (as defined herein) of the Company, will rank on a parity
with all other Senior Subordinated Debt (as defined herein) of the Company, and
will be senior to the Company's Junior Subordinated Debt, Capital Debt (each as
defined herein) and the Company's common stock.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
, 1995
<PAGE> 3
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS IN CONNECTION WITH THIS OFFERING
OTHER THAN THOSE CONTAINED IN, OR INCORPORATED BY REFERENCE IN, THIS PROSPECTUS
OR THE PROSPECTUS SUPPLEMENT, AND IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY
OR ANY AGENT, UNDERWRITER OR DEALER. THIS PROSPECTUS AND THE PROSPECTUS
SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO
BUY ANY OF THE DEBT SECURITIES IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION. THE DELIVERY
OF THIS PROSPECTUS OR THE PROSPECTUS SUPPLEMENT AT ANY TIME DOES NOT IMPLY THAT
THE INFORMATION CONTAINED HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT
TO THEIR RESPECTIVE DATES.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and, in accordance therewith,
files reports and other information with the Securities and Exchange Commission
(the "Commission"). Such reports and other information can be inspected and
copied at the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549, and at the Regional Offices of the
Commission at 500 West Madison Street, 14th Floor, Chicago, Illinois 60661; and
7 World Trade Center, 13th Floor, New York, New York 10048. Copies of such
material can be obtained from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. Certain debt
securities of the Company are listed on the New York Stock Exchange, and reports
and other information concerning the Company can be inspected at the offices of
such exchange at 20 Broad Street, New York, New York 10005. This Prospectus does
not contain all of the information set forth in the Registration Statement on
Form S-3 and the exhibits thereto which the Company has filed with the
Commission under the Securities Act of 1933, as amended, and to which reference
is hereby made for further information.
Each of the Indentures (as defined herein) pursuant to which the Debt
Securities are being issued requires the Company to file reports under the 1934
Act. Quarterly and annual reports will be made available upon request of holders
of the Debt Securities, which annual reports will contain financial information
that has been examined and reported upon by, with an opinion expressed by, an
independent public or certified public accountant.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have heretofore been filed by the Company
with the Commission pursuant to the 1934 Act (File No. 1-3521), are incorporated
by reference in this Prospectus and shall be deemed to be a part hereof:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994.
All documents filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the 1934 Act subsequent to the date of this
Prospectus and prior to the termination of the offering made by this Prospectus
and the accompanying Prospectus Supplement shall be deemed to be incorporated
herein by reference and shall be deemed to be a part hereof from the date of
filing of such documents (such documents, and the documents enumerated above,
being herein referred to as "Incorporated Documents"; provided, however, that
the documents enumerated above and documents subsequently filed by the Company
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act prior to the
filing with the Commission of the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995 shall not be Incorporated Documents or be
incorporated by reference in this Prospectus or be a part hereof from and after
the filing of such Annual Report on Form 10-K).
Any statement contained in an Incorporated Document shall be deemed to be
modified or superseded for all purposes to the extent that a statement contained
herein or in any other subsequently filed Incorporated
2
<PAGE> 4
Document or in an accompanying Prospectus Supplement modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as modified or superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom a copy of this Prospectus has been
delivered, on the written or oral request of such person, a copy of any or all
of the documents referred to above which have been or may be incorporated in
this Prospectus by reference, other than exhibits to such documents. Requests
for such copies should be directed to Aristar, Inc., Office of the Chief
Financial Officer, 8900 Grand Oak Circle, Tampa, Florida 33637-1050, telephone
number: (813) 632-4500.
THE COMPANY
The Company, incorporated in Delaware in 1986 as a successor to a company
incorporated in 1927, is a holding company whose subsidiaries are engaged in the
consumer finance business. All of the Company's equity securities are owned
indirectly by Great Western Financial Corporation ("Great Western"). Great
Western is the parent of a group of companies engaged primarily in mortgage
lending, retail banking and consumer finance.
The operations of the Company consist principally of a network of 477
consumer finance offices located in 22 states which generally operate under the
names Blazer Financial Services and City Finance Company.
The Company makes direct consumer installment loans and purchases retail
installment contracts from local retail establishments. These consumer credit
transactions are primarily for personal, family or household purposes.
Installment loans written in 1994 had original terms ranging from 12 to 180
months and averaged 48 months. For the year ended December 31, 1994, 85% of the
volume of all installment loans was either unsecured or secured by guarantors,
luxury consumer goods, automobiles or other personal property, with the
remaining 15% being secured by real estate. Retail installment contracts are
generally acquired without recourse to the originating merchant. These contracts
are typically written with original terms from 3 to 60 months and for 1994 had
an average original term of 24 months. The Company calculates delinquencies on
its consumer finance portfolio as the percentage of the gross amount of accounts
which are 60 days or more past due based on the accounts' original contractual
terms. At December 31, 1994, such contractual delinquencies amounted to 1.7% of
gross receivables outstanding.
The principal executive offices of the Company are located at 8900 Grand
Oak Circle, Tampa, Florida 33637-1050. Its telephone number is (813) 632-4500.
USE OF PROCEEDS
Except as may be set forth in the Prospectus Supplement, the net proceeds
available to the Company from the sale of the Debt Securities will be used to
reduce borrowings of the Company (including outstanding commercial paper) and
for general corporate purposes.
The precise amount and timing of sales of the Debt Securities will be
dependent on market conditions and the availability and cost of other funds to
the Company. The Company expects that additional long-term and short-term
financing will be required from time to time. Such financing may be effected
through such means as the Company deems appropriate at the time. The amount and
timing of further financing cannot now be determined.
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<PAGE> 5
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the Company for each of the periods indicated. Earnings consist of income from
continuing operations before income taxes and, in 1992, before the cumulative
effect of a change in accounting principle, plus fixed charges. Fixed charges
consist of interest and debt expense and an appropriate portion of rentals.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------------------------
1990 1991 1992 1993 1994
----- ------ ------ ----- -----
<S> <C> <C> <C> <C>
1.40 1.77 1.83 1.89 2.02
</TABLE>
DESCRIPTION OF DEBT SECURITIES
Senior Debt Securities may be issued from time to time under an Indenture
to be dated as of , 1995 (the "Senior Indenture") between
the Company and The Bank of New York, as Trustee (the "Senior Trustee").
Subordinated Debt Securities may be issued from time to time under an Indenture
to be dated as of , 1995 (the "Subordinated Indenture")
between the Company and The Bank of New York, as Trustee (the "Subordinated
Trustee"). The Senior Indenture and the Subordinated Indenture are sometimes
referred to collectively as the "Indentures" and individually as an "Indenture".
The Senior Trustee and the Subordinated Trustee are sometimes referred to
collectively as the "Trustees" and individually as a "Trustee". The forms of the
Indentures are filed as exhibits to the Registration Statement. Each of the
Indentures incorporates the Company's Standard Multiple-Series Indenture
Provisions (the "Standard Provisions") which are also filed as an exhibit to the
Registration Statement. The following are brief summaries of certain provisions
of each Indenture and are subject to the detailed provisions of such Indenture,
to which reference is hereby made for a complete statement of such provisions.
Capitalized terms used herein and not otherwise defined are used with the
meanings ascribed thereto in the Standard Provisions.
GENERAL
Each Indenture does not limit the aggregate principal amount of Debt
Securities which may be issued thereunder and provides that Debt Securities may
be issued from time to time in one or more series. The Debt Securities will be
unsecured general obligations of the Company.
Neither Great Western, the Company's ultimate parent, nor any of Great
Western's other subsidiaries have (i) any obligation, direct or otherwise, with
respect to the Debt Securities, (ii) any obligation to maintain the net worth of
the Company or (iii) any agreement with respect to the continuation of the
present ownership of the Company.
The Debt Securities may be issued in fully registered form without coupons
("Registered Securities") or in bearer form with or without coupons ("Bearer
Securities") or in the form of one or more global securities (each a "Global
Security"). Registered Securities which are book-entry securities ("Book-Entry
Securities") will be issued as registered Global Securities. Bearer Securities
may be issued in the form of temporary or definitive Global Securities. Unless
otherwise provided in the Prospectus Supplement, the Debt Securities will be
only Registered Securities. The Debt Securities will be issued, unless otherwise
provided in the Prospectus Supplement, in denominations of $1,000 or an integral
multiple thereof for Registered Securities, and in denominations of $5,000 or an
integral multiple thereof for Bearer Securities.
The Prospectus Supplement describes the following terms of the Offered
Securities: (1) the title of the Offered Securities; (2) whether the Offered
Securities are Senior Debt Securities or Subordinated Debt Securities; (3) the
percentage of principal amount at which the Offered Securities will be issued;
(4) any limit on the aggregate principal amount of the Offered Securities; (5)
the date or dates on which the Offered Securities will mature and the amount or
amounts of any installment of principal payable on such dates; (6) the rate or
rates (which may be fixed or variable) per annum at which the Offered Securities
will bear interest, if any, or the method of determining such rate or rates and
the date or dates from which such interest,
4
<PAGE> 6
if any, will accrue; (7) the date or dates on which interest, if any, on the
Offered Securities will be payable and the regular record dates for such payment
dates; (8) the terms for redemption, repurchase or early payment, if any,
including any mandatory or optional sinking fund or analogous provisions; (9)
the principal amount of Offered Securities which bear no interest or interest at
a rate which at the time of issuance is below market rates that is payable upon
declaration of acceleration of the maturity of the Offered Securities; (10)
whether the Offered Securities will be issued in registered form without
coupons, in bearer form with or without coupons, including temporary and
definitive global form, or a combination thereof and the circumstances, if any,
upon which such Offered Securities may be exchanged for Offered Securities
issued in a different form; (11) whether the Offered Securities are to be issued
in whole or in part in the form of one or more Global Securities and, if so, the
identity of the depositary for such Global Security or Securities; (12) whether
and under what circumstances the Company will pay additional amounts to any
Holder of Offered Securities who is not a United States person (as defined under
"Limitations on Issuance of Bearer Securities") in respect of any tax,
assessment or other governmental charge required to be withheld or deducted and,
if so, whether the Company will have the option to redeem rather than pay any
additional amounts; (13) any additional covenants for the benefit of the holders
of the Offered Securities; and (14) certain other terms, including the ability
of the Company to satisfy and discharge its obligations under the Indenture with
respect to the Offered Securities.
No service charge will be made for any transfer or exchange of the Debt
Securities but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Debt Securities of a single series may be issued at various times with
different maturity dates and different principal repayment provisions, may bear
interest at different rates, may be issued at or above par or with an original
issue discount, and may otherwise vary, all as provided in the Indentures.
Federal income tax consequences and other special considerations applicable
to any Debt Securities issued with original issue discount or above par will be
described in the Prospectus Supplement relating thereto.
STATUS OF SENIOR DEBT SECURITIES
The Senior Debt Securities will be unsecured and unsubordinated general
obligations of the Company and will rank on a parity with all other unsecured
and unsubordinated indebtedness of the Company.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
Payment of the principal of (and premium, if any) and interest, if any, on
the Subordinated Debt Securities will be subordinate and junior in right of
payment to the prior payment in full of all Senior Debt (as defined herein). At
February 28, 1995, Senior Debt aggregated approximately $1,028,700,000. The
Subordinated Indenture does not limit or restrict the Company's ability to incur
additional Senior Debt, but certain other debt instruments of the Company
contain such limitations.
In the event of any sale pursuant to any judgment or decree in any
proceeding by or on behalf of any Holder, or of any distribution, division or
application of all or any part of the assets of the Company to its creditors by
reason of any liquidation, dissolution or winding up of the Company or any
receivership, insolvency, bankruptcy or similar proceeding relative to the
Company or its debts or properties, then the holders of Senior Debt shall be
preferred in the payment of their claims over the holders of the Subordinated
Debt Securities, and such Senior Debt shall be satisfied in full before any
payment or other distribution (other than securities which are subordinate and
junior in right of payment to the payment of all Senior Debt then outstanding)
shall be made upon the Subordinated Debt Securities. In the event that any
Subordinated Debt Security is declared or becomes due and payable before its
maturity because of an occurrence of an event of default (under circumstances
not described in the preceding sentence), no amount shall be paid in respect of
the Subordinated Debt Securities in excess of current interest payments, except
sinking fund payments or at maturity, unless all Senior Debt then outstanding
shall have been paid in full or payments satisfactory to the holders thereof
provided therefor. During the continuance of any default on Senior Debt, no
payments of
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<PAGE> 7
principal, sinking fund, interest or premium shall be made with respect to any
Subordinated Debt Security if either (i) notice of default has been given to the
Company, provided judicial proceedings are commenced in respect thereof within
120 days, or (ii) judicial proceedings shall be pending in respect of such
default. In the event that any Subordinated Debt Security is declared or becomes
due and payable before maturity, each holder of Senior Debt shall be entitled to
notice of same and shall be entitled to declare payable on demand any Senior
Debt outstanding to such holder.
"Debt" is defined in the Subordinated Indenture to include all indebtedness
of the Company or any Consolidated Subsidiary representing money borrowed,
except indebtedness owed to the Company by any
Consolidated Subsidiary or owed to any Consolidated Subsidiary by the Company or
any other Consolidated Subsidiary, and includes indebtedness of any other person
for money borrowed when such indebtedness is guaranteed by the Company or any
Consolidated Subsidiary. "Senior Debt" is defined to mean all Debt other than
Subordinated Debt. "Senior Subordinated Debt" is defined to mean the Company's
8.875% Senior Subordinated Notes Due 1998, the Company's 7 1/2% Senior
Subordinated Notes Due 1999 and any other Subordinated Debt which is not
subordinate and junior in right of payment to the Subordinated Debt Securities.
"Junior Subordinated Debt" is defined to mean any Subordinated Debt of the
Company which is not Senior Subordinated Debt or Capital Debt. "Capital Debt" is
defined to mean any Subordinated Debt which provides by its terms that such
indebtedness is subordinate and junior in right of payment to all Senior Debt,
Senior Subordinated Debt and Junior Subordinated Debt. "Subordinated Debt" is
defined to mean all Debt (including Senior Subordinated Debt, Junior
Subordinated Debt and Capital Debt) which is subordinate and junior in right of
payment to any other Debt.
Subordinated Debt Securities will rank on a parity with all other Senior
Subordinated Debt. Subordinated Debt Securities are senior to the Company's
Junior Subordinated Debt, Capital Debt and the Company's common stock and will
be senior to any other class of capital stock which may be authorized.
EXCHANGE, REGISTRATION AND TRANSFER
Registered Securities (other than Book-Entry Securities) of any series will
be exchangeable for other Registered Securities of the same series and of a like
aggregate principal amount and tenor of different authorized denominations. In
addition, if Debt Securities of any series are issuable as both Registered
Securities and Bearer Securities, at the option of the Holder and subject to the
terms of the Indenture, Bearer Securities (with all unmatured coupons, except as
provided below, and all matured coupons in default) of such series will be
exchangeable into Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor. Bearer
Securities with coupons appertaining thereto surrendered in exchange for
Registered Securities between a Regular Record Date or a Special Record Date and
the relevant date for payment of interest shall be surrendered without the
coupon relating to such date for payment of interest and interest due on such
date will not be payable in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the terms of the applicable Indenture.
Bearer Securities will not be issued in exchange for Registered Securities.
Debt Securities may be presented for exchange as provided above, and
Registered Securities (other than Book-Entry Securities) may be presented for
registration of transfer (with the form of transfer endorsed thereon duly
executed), at the office of the Security Registrar or at the office of any
transfer agent designated by the Company for such purpose with respect to any
series of Debt Securities and referred to in the Prospectus Supplement, without
service charge and upon payment of any taxes and other governmental charges as
described in the applicable Indenture. Such transfer or exchange will be
effected upon the Security Registrar or such transfer agent, as the case may be,
being satisfied with the documents of title and identity of the person making
the request. The Company has appointed the Trustee under each Indenture as
Security Registrar. If a Prospectus Supplement refers to any transfer agents (in
addition to the Security Registrar) initially designated by the Company with
respect to any series of Debt Securities, the Company may at any time rescind
the designation of any such transfer agent or approve a change in the location
through which any such transfer agent acts, except that, if Debt Securities of a
series are issuable solely as Registered Securities, the Company will be
required to maintain a transfer agent in each Place of Payment for such series
and, if
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<PAGE> 8
Debt Securities of a series are issuable as Bearer Securities, the Company will
be required to maintain (in addition to the Security Registrar) a transfer agent
in a Place of Payment for such series located in Europe. The Company may at any
time designate additional transfer agents with respect to any series of Debt
Securities.
In the event of any redemption in part, the Company shall not be required
to: (i) issue, register the transfer of or exchange Debt Securities of any
series during a period beginning at the opening of business 15 days before any
selection of Debt Securities of that series to be redeemed and ending at the
close of business on (a) if Debt Securities of the series are issuable only as
Registered Securities, the day of mailing of the relevant notice of redemption
and (b) if Debt Securities of the series are issuable only as Bearer Securities,
the day of the first publication of the relevant notice of redemption or, if
Debt Securities of the series are also issuable as Registered Securities and
there is no publication, the day of mailing of the relevant notice of
redemption; (ii) register the transfer of or exchange any Registered Security,
or portion thereof, called for redemption, except the unredeemed portion of any
Registered Security being redeemed in part; or (iii) exchange any Bearer
Security called for redemption, except to exchange such Bearer Security for a
Registered Security of that series and like tenor which is simultaneously
surrendered for redemption.
For a discussion of restrictions on the exchange, registration and transfer
of Global Securities, see "Global Securities".
PAYMENT AND PAYING AGENTS
Unless otherwise provided in the Prospectus Supplement, payment of
principal of (and premium, if any) and interest, if any, on Bearer Securities
will be payable in U.S. dollars, subject to any applicable laws and regulations,
at the offices of such Paying Agents outside the United States as the Company
may designate from time to time, and payment of interest on Bearer Securities
with coupons appertaining thereto on any Interest Payment Date will be made only
against surrender of the coupon relating to such Interest Payment Date. No
payment of interest on a Bearer Security will be made unless, on the earlier of
the date of the first such payment by the Company or the delivery by the Company
of the Bearer Security in definitive form, a written certificate in the form
required by the Indenture is provided to the Trustee stating that on such date
the Bearer Security is owned by (i) a person that is not a United States person,
(ii) a United States person that (a) is a foreign branch of a United States
financial institution purchasing for its own account or for resale or (b)
acquired and holds the Bearer Security through the foreign branch of a United
States financial institution (and, in the case of either (a) or (b), such
financial institution agrees to comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended (the
"Code"), and the regulations thereunder) or (iii) a financial institution
purchasing for resale during the restricted period (as defined under "Global
Securities -- Temporary and Definitive Global Securities") and, in any case, if
any such owner is a financial institution, such financial institution has not
acquired the Bearer Security for purposes of resale to United States persons or
to persons within the United States (as defined under "Limitations on Issuance
of Bearer Securities"). Presentation of coupons for payment or other demands for
payment of Bearer Securities must be made outside the United States, and no
payment with respect to any Bearer Security will be made at any office or agency
of the Company in the United States or by check mailed to any address in the
United States or by transfer to an account maintained with a bank located in the
United States. Notwithstanding the foregoing, payments of principal of (and
premium, if any) and interest, if any, on Bearer Securities will be made at the
office of the Company's Paying Agent in The City of New York, if (but only if)
(i) despite the appointment of Paying Agents outside the United States, payment
of the full amount thereof at the offices of all such Paying Agents is illegal
or effectively precluded by exchange controls or other similar restrictions,
(ii) such payment is then permitted by applicable laws and (iii) in appointing a
Paying Agent in The City of New York, the Company would not suffer any fiscal or
other sanction under applicable laws as a result of such appointment or of any
payment being made through such Paying Agent.
Unless otherwise provided in the Prospectus Supplement, payment of
principal of (and premium, if any) and interest, if any, on Registered
Securities will be made in U.S. dollars at the office of such Paying Agent or
Paying Agents as the Company may designate from time to time, except that at the
option of the Company payment of any interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register. Unless otherwise provided in the Prospectus Supplement,
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<PAGE> 9
payment of any installment of interest on Registered Securities will be made to
the Person in whose name such Registered Security is registered at the close of
business on the Regular Record Date for such interest.
Unless otherwise provided in the Prospectus Supplement, the Corporate Trust
Office of each Trustee in The City of New York will be designated as the
Company's sole Paying Agent for payments with respect to Offered Securities that
are issuable solely as Registered Securities and as the Company's Paying Agent
in The City of New York for payments with respect to Offered Securities (subject
to the limitations described above in the case of Bearer Securities) that are
issuable solely as Bearer Securities or as both Registered Securities and Bearer
Securities. Any Paying Agents outside the United States and any other Paying
Agents in the United States initially designated by the Company for the Offered
Securities will be named in the Prospectus Supplement. The Company may at any
time designate additional Paying Agents or rescind the designation of any Paying
Agent or approve a change in the office through which any Paying Agent acts,
except that, if Debt Securities of a series are issuable solely as Registered
Securities, the Company will be required to maintain a Paying Agent in each
Place of Payment for such series and, if Debt Securities of a series are
issuable as Bearer Securities, the Company will be required to maintain (i) a
Paying Agent in The City of New York for payments with respect to any Registered
Securities of the series (and for payments with respect to Bearer Securities of
the series in the circumstances described above, but not otherwise), and (ii) a
Paying Agent in a Place of Payment located outside the United States where Debt
Securities of such series and any coupons appertaining thereto may be presented
and surrendered for payment; provided that if the Debt Securities of such series
are listed on The International Stock Exchange of the United Kingdom and the
Republic of Ireland Limited or the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company will maintain a Paying Agent in London or Luxembourg or any
other required city located outside the United States, as the case may be, for
the Debt Securities of such series.
All moneys paid by the Company to a Paying Agent for the payment of
principal of (and premium, if any) or interest, if any, on any Debt Security or
coupon that remain unclaimed at the end of two years after such principal,
premium or interest shall have become due and payable will be repaid to the
Company and the Holder of such Debt Security or coupon will thereafter look only
to the Company for payment thereof.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part as one or
more Global Securities that will be deposited with, or on behalf of, a
depositary located in the United States (a "U.S. Depositary") or a
common depositary located outside the United States (a "Common Depositary")
identified in the Prospectus Supplement relating to such series. Global
Securities may be issued in either registered or bearer form, and in either
temporary or definitive form.
The specific terms of the depositary arrangement with respect to any Debt
Securities of a series will be described in the Prospectus Supplement relating
to such series. The Company anticipates that the following provisions will apply
to all depositary arrangements with a U.S. Depositary or Common Depositary.
Book-Entry Securities
Unless otherwise specified in the Prospectus Supplement, Debt Securities
which are to be represented by a Global Security to be deposited with or on
behalf of a U.S. Depositary will be represented by a Global Security registered
in the name of such depositary or its nominee. Upon the issuance of a Global
Security in registered form, the U.S. Depositary for such Global Security will
credit, on its book-entry registration and transfer system, the respective
principal amounts of the Debt Securities represented by such Global Security to
the accounts of institutions that have accounts with such depositary or its
nominee ("participants"). The accounts to be credited shall be designated by the
underwriters or agents of such Debt Securities or by the Company, if such Debt
Securities are offered and sold directly by the Company. Ownership of beneficial
interests in such Global Securities will be limited to participants or persons
that may hold interests through participants. Ownership of beneficial interests
in such Global Securities will be shown on, and the transfer of that ownership
will be effected only through, records maintained by the U.S. Depositary or its
nominee for
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<PAGE> 10
such Global Security or by participants or persons that hold through
participants. The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
a Global Security.
So long as the U.S. Depositary for a Global Security in registered form, or
its nominee, is the registered owner of such Global Security, such depositary or
such nominee, as the case may be, will be considered the sole owner or holder of
the Debt Securities represented by such Global Security for all purposes under
the Indenture governing such Debt Securities. Except as set forth below, owners
of beneficial interests in such Global Securities will not be entitled to have
Debt Securities of the series represented by such Global Security registered in
their names, will not receive or be entitled to receive physical delivery of
Debt Securities of such series in definitive form and will not be considered the
owners or holders thereof under the Indenture including, without limitation, for
purposes of consenting to any amendment thereof or supplement thereto.
Payment of principal of (and premium, if any) and interest, if any, on Debt
Securities registered in the name of or held by a U.S. Depositary or its nominee
will be made to the U.S. Depositary or its nominee, as the case may be, as the
registered owner or the holder of the Global Security representing such Debt
Securities. None of the Company, the Trustee, any Paying Agent or the Security
Registrar for such Debt Securities will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests in a Global Security for such Debt Securities or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
The Company expects that the U.S. Depositary for Debt Securities of a
series, upon receipt of any payment of principal of (and premium, if any) or
interest on permanent Global Securities, will credit participants' accounts on
the date such payment is payable in accordance with their respective beneficial
interests in the principal amount of such Global Securities as shown on the
records of such Depositary. The Company also expects that payments by
participants to owners of beneficial interests in such Global Security held
through such participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts of
customers in bearer form or registered in "street name", and will be the
responsibility of such participants.
Unless and until it is exchanged in whole for Debt Securities in definitive
form, a Global Security may not be transferred except as a whole by the U.S.
Depositary for such Global Security to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor of such
Depositary or a nominee of such successor. If a U.S. Depositary for Debt
Securities in registered form is at any time unwilling or unable to continue as
depositary and a successor depositary is not appointed by the Company within
ninety days, the Company will issue Debt Securities in definitive registered
form in exchange for the Global Security or Securities representing such Debt
Securities. In addition, the Company may at any time and in its sole discretion
determine not to have any Debt Securities in registered form represented by one
or more Global Securities and, in such event, will issue Debt Securities in
definitive registered form in exchange for the Global Security or Securities
representing such Debt Securities. In any such instance, an owner of a
beneficial interest in a Global Security will be entitled to physical delivery
in definitive form of Debt Securities of the series represented by such Global
Security equal in principal amount to such beneficial interest and to have such
Debt Securities registered in the name of the owner of such beneficial interest.
Temporary and Definitive Global Securities
If so specified in the Prospectus Supplement, all or any portion of the
Debt Securities of a series that are issuable as Bearer Securities initially
will be represented by one or more temporary Global Securities, without interest
coupons, to be deposited with a Common Depositary in London for Morgan Guaranty
Trust Company of New York, Brussels Office, as operator of the Euro-clear System
("Euro-clear") and CEDEL S.A. ("CEDEL") for credit to the respective accounts of
the beneficial owners of such Debt Securities (or to such other accounts as they
may direct). On and after the exchange date determined as provided in any such
temporary Global Security and described in the Prospectus Supplement, each such
temporary Global Security will be exchangeable for definitive Debt Securities in
bearer form, registered form, definitive global bearer form or any combination
thereof, as specified in the Prospectus Supplement, upon written certification
(as
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<PAGE> 11
described under "Payment and Paying Agents") of non-United States beneficial
ownership. No Bearer Security delivered in exchange for a portion of a temporary
Global Security shall be mailed or otherwise delivered to any location in the
United States.
Unless otherwise provided in the Prospectus Supplement, interest in respect
of any portion of a temporary Global Security payable in respect of an Interest
Payment Date occurring prior to the issuance of definitive Debt Securities will
be paid to each of Euro-clear and CEDEL with respect to the portion of the
temporary Global Security held for its account upon delivery to the Trustee of a
certificate of non-United States beneficial ownership signed by Euro-clear or
CEDEL, as the case may be, in the form required by the applicable Indenture
dated no earlier than such Interest Payment Date.
If any Debt Securities of a series are issuable in definitive global bearer
form, the Prospectus Supplement will describe the circumstances, if any, under
which beneficial owners of interests in any such definitive Global Security may
exchange such interests for Debt Securities of such series and of like tenor and
principal amount in any authorized form and denomination. No Bearer Security
delivered in exchange for a portion of a definitive Global Security shall be
mailed or otherwise delivered to any location in the United States in connection
with such exchange. A Person having a beneficial interest in a definitive Global
Security, except with respect to payment of principal of (and premium, if any)
and interest, if any, on such definitive Global Security, will be treated as a
Holder of such principal amount of Outstanding Debt Securities represented by
such definitive Global Security as shall be specified in a written statement of
the Holder of such definitive Global Security or, in the case of a definitive
Global Security in bearer form, of Euro-clear or CEDEL which is produced to the
Trustee by such Person. Principal of (and premium, if any) and interest, if any,
on a definitive Global Security will be payable in the manner described in the
Prospectus Supplement.
In connection with the sale of a Bearer Security during the "restricted
period," as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United States
Treasury regulations (generally, the first 40 days after the closing date and,
with respect to unsold allotments, until sold), no Bearer Security (including a
definitive Bearer Security in global form) shall be mailed or otherwise
delivered to any location in the United States and a Bearer Security sold during
the restricted period may be delivered only if the person entitled to receive
such Bearer Security (including a definitive Bearer Security in global form)
furnishes written certification (as described under "Payment and Paying Agents")
of non-United States beneficial ownership. See "Limitations on Issuance of
Bearer Securities".
LIMITATIONS ON ISSUANCE OF BEARER SECURITIES
Generally, in compliance with United States federal tax laws and
regulations, Bearer Securities may not be offered or sold during the restricted
period (as defined under "Global Securities -- Temporary and Definitive Global
Securities") or delivered in connection with their sale during the restricted
period in the United States or to United States persons (each as defined below)
other than foreign branches of United States financial institutions that agree
in writing to comply with the requirements of Section 165(j)(3)(A), (B) or (C)
of the Code or that purchase for resale during the restricted period only to
non-United States persons outside the United States. Any underwriters, agents
and dealers participating in the offering of Debt Securities must agree that
they will not offer or sell any Bearer Securities in the United States or to
United States persons (other than the financial institutions described above) or
deliver Bearer Securities within the United States.
Bearer Securities and their interest coupons will bear a legend
substantially to the following effect: "Any United States person who holds this
obligation will be subject to limitations under the United States income tax
laws, including the limitations provided in Sections 165(j) and 1287(a) of the
Internal Revenue Code". The Code Sections referred to in the legend provide
that, with certain exceptions, a United States person holding a Bearer Security
or coupon will not be permitted to deduct any loss, and will not be eligible for
capital gain treatment with respect to any gain, realized on a sale, exchange or
redemption of such Bearer Security or coupon.
As used in this Prospectus, "United States person" means a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States, or an
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<PAGE> 12
estate or trust the income of which is subject to United States federal income
taxation regardless of its source and the term "United States" means the United
States of America (including the States and the District of Columbia), its
territories, its possessions, the Commonwealth of Puerto Rico and other areas
subject to its jurisdiction.
ABSENCE OF RESTRICTIVE COVENANTS
The Company is not restricted by either of the Indentures from paying
dividends or from incurring, assuming or becoming liable for any type of debt or
other obligations or from creating liens on its property for any purpose.
Neither of the Indentures requires the maintenance of any financial ratios or
specified levels of net worth or liquidity. Neither of the Indentures contains
provisions which afford holders of the Debt Securities protection in the event
of a highly leveraged transaction involving the Company.
MERGER AND CONSOLIDATION
Each Indenture provides that the Company, without the consent of the
Holders of any of the Outstanding Debt Securities, may consolidate with or merge
into any other corporation or transfer or lease its properties and assets
substantially as an entirety to any Person or may permit any corporation to
merge into the Company, provided that: (i) the successor is a corporation
organized under the laws of any domestic jurisdiction; (ii) the successor, if
other than the Company, assumes the Company's obligations under such Indenture
and the Debt Securities issued thereunder; (iii) immediately after giving effect
to such transaction, no Event of Default and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have occurred and
be continuing; and (iv) certain other conditions are met.
Each Indenture provides that, upon any consolidation or merger or transfer
or lease of the properties and assets of the Company substantially as an
entirety in accordance with the preceding paragraph, the successor corporation
formed by such consolidation or into which the Company is merged or to which
such transfer or lease is made shall be substituted for the Company with the
same effect as if such successor corporation had been named as the Company.
Thereafter, the Company shall be relieved of the performance and observance of
all obligations and covenants of such Indenture and the Senior Debt Securities
or Subordinated Debt Securities, as the case may be, including but not limited
to the obligation to make payment of the principal of (and premium, if any) and
interest, if any, on all the Debt Securities then outstanding, and the Company
may thereupon or any time thereafter be liquidated and dissolved.
SATISFACTION AND DISCHARGE
Unless the Prospectus Supplement provides otherwise, the Company will be
discharged from its obligations under the Outstanding Debt Securities of a
series upon satisfaction of the following conditions: (a) the Company has
irrevocably deposited with the Trustee either (i) money in an amount as will, or
(ii) U.S. Government Obligations as will, together with the predetermined and
certain income to accrue thereon without consideration of any reinvestment
thereof, or (iii) a combination of (i) and (ii) as will (in a written opinion
with respect to (ii) or (iii) of independent public accountants delivered to the
Trustee), be sufficient to pay and discharge the entire principal of (and
premium, if any), and interest, if any, to Stated Maturity or any redemption
date on, the Outstanding Debt Securities of such series; (b) the Company has
paid or caused to be paid all other sums payable with respect to the Outstanding
Debt Securities of such series; (c) the Trustee has received an Officers'
Certificate and an Opinion of Counsel each stating that all conditions precedent
have been complied with; and (d) the Trustee has received an opinion of tax
counsel to the effect that such deposit and discharge will not cause the Holders
of the Debt Securities of such series to recognize income, gain or loss for
federal income tax purposes and that the Holders will be subject to federal
income tax in the same amounts, in the same manner and at the same times as
would have been the case if such deposit and discharge had not occurred. Upon
such discharge, the Company will be deemed to have satisfied all the obligations
under the Indenture, except for obligations with respect to registration of
transfer and exchange of the Debt Securities of such series, and the rights of
the Holders to receive from deposited funds payment of the principal of (and
premium, if any) and interest, if any, on the Debt Securities of such series.
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<PAGE> 13
MODIFICATION OF THE INDENTURES
Each Indenture provides that the Company and the Trustee thereunder may,
without the consent of any Holders of Debt Securities, enter into supplemental
indentures for the purposes, among other things, of adding to the Company's
covenants, adding any additional Events of Default, establishing the form or
terms of Debt Securities or curing ambiguities or inconsistencies in such
Indenture or making other provisions; provided such action shall not adversely
affect the interests of the Holders of any series of Debt Securities in any
material respect.
Each Indenture contains provisions permitting the Company, with the consent
of the Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of all affected series (acting as one class), to
execute supplemental indentures adding any provisions to or changing or
eliminating any of the provisions of such Indenture or modifying the rights of
the Holders of the Debt Securities of such series, except that no such
supplemental indenture may, without the consent of the Holders of all the
Outstanding Debt Securities affected thereby, among other things: (i) change the
maturity of the principal of, or any installment of principal of or interest on,
any of the Debt Securities; (ii) reduce the principal amount thereof (or any
premium thereon) or the rate of interest, if any, thereon; (iii) reduce the
amount of the principal of Original Issue Discount Securities payable on any
acceleration of maturity; (iv) change any obligation of the Company to maintain
an office or agency in the places and for the purposes required by such
Indenture; (v) impair the right to institute suit for the enforcement of any
such payment on or after the applicable maturity date; (vi) reduce the
percentage in principal amount of the Outstanding Debt Securities of any series,
the consent of the Holders of which is required for any such supplemental
indenture or for any waiver of compliance with certain provisions of, or of
certain defaults under, such Indenture; or (vii) with certain exceptions, to
modify the provisions for the waiver of certain defaults and any of the
foregoing provisions.
EVENTS OF DEFAULT
An Event of Default in respect of any series of Debt Securities (unless it
is either inapplicable to a particular series or has been modified or deleted
with respect to any particular series) is defined in each Indenture to be: (i) a
default for 30 days in the payment when due of any interest on such series of
Debt Securities; (ii) a default in the payment of principal of (and premium, if
any, on) such series of Debt Securities, whether payable at maturity, by call
for redemption, pursuant to any sinking fund or otherwise; (iii) a default for
90 days after a notice of default with respect to the performance of any other
covenant in such Indenture (other than a covenant included in such Indenture
solely for the benefit of a series of Debt Securities other than that series);
(iv) certain events of bankruptcy, insolvency or reorganization; (v) an event of
default under any mortgage, indenture (including such Indenture) or other
instrument under which any Debt shall be outstanding which default shall have
resulted in the acceleration of such Debt in excess of $25,000,000 in aggregate
principal amount (except that such amount shall be $20,000,000 in respect of a
default on Debt Securities of another series) and such acceleration shall not
have been rescinded or such Debt discharged within a period of 30 days after
notice; and (vi) any other event of default provided for such series of Debt
Securities.
Each Indenture provides that if an Event of Default specified therein in
respect of any series of Outstanding Debt Securities issued under such Indenture
shall have happened and be continuing, either the Trustee thereunder or the
Holders of not less than 25% in principal amount of the Outstanding Debt
Securities of such series may declare the principal (or, if such Debt Securities
are Original Issue Discount Securities, such portion of the principal amount as
may be specified by the terms of such Debt Securities) of all of the Outstanding
Debt Securities of such series to be immediately due and payable.
Each Indenture provides that the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of any series may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee thereunder, or exercising any trust or power conferred on such
Trustee, with respect to the Debt Securities of such series; provided that (i)
such direction shall not be in conflict with any rule of law or with the
Indenture, (ii) the Trustee may take any other action deemed proper
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<PAGE> 14
that is not inconsistent with such direction and (iii) the Trustee shall not
determine that the action so directed would be unjustly prejudicial to the
Holders of Debt Securities of such series not taking part in such direction.
Each Indenture provides that the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of any series may on behalf
of the Holders of all of the Outstanding Debt Securities of such series waive
any past default under the applicable Indenture with respect to such series and
its consequences, except a default (i) in the payment of the principal of (or
premium, if any) or interest, if any, on any of the Debt Securities of such
series or (ii) in respect of a covenant or provision of such Indenture which,
under the terms of such Indenture, cannot be modified or amended without the
consent of the Holders of all of the Outstanding Debt Securities of such series
affected thereby.
Each Indenture contains provisions entitling the Trustee thereunder,
subject to the duty of such Trustee during an Event of Default in respect of any
series of Debt Securities to act with the required standard of care, to be
indemnified by the Holders of the Debt Securities of such series before
proceeding to exercise any right or power under such Indenture at the request of
the Holders of the Debt Securities of such series.
Each Indenture provides that the Trustee thereunder will, within 90 days
after the occurrence of a default in respect of any series of Debt Securities,
give to the Holders of the Debt Securities of such series notice of all uncured
and unwaived defaults known to it; provided, however, that, except in the case
of a default in the payment of the principal of (or premium, if any) or any
interest on, or any sinking fund installment with respect to, any of the Debt
Securities of such series, such Trustee will be protected in withholding such
notice if it in good faith determines that the withholding of such notice is in
the interests of the Holders of the Debt Securities of such series; and
provided, further, that such notice shall not be given until at least 30 days
after the occurrence of an Event of Default regarding the performance of any
covenant of the Company under such Indenture other than for the payment of the
principal of (or premium, if any) or any interest on, or any sinking fund
installment with respect to, any of the Debt Securities of such series. The term
default for the purpose of this provision only means any event that is, or after
notice or lapse of time, or both, would become, an Event of Default with respect
to the Debt Securities of such series.
The Company will be required to furnish annually to each Trustee a
certificate as to compliance with all conditions and covenants under each of the
Indentures.
MEETINGS
Each Indenture contains provisions for convening meetings of the Holders of
Debt Securities of a series if Debt Securities of that series are issuable as
Bearer Securities. A meeting may be called at any time by the Trustee under the
applicable Indenture, and also, upon request, by the Company or the Holders of
at least 10% in principal amount of the Outstanding Debt Securities of such
series, in any such case upon notice given in accordance with "Notices" below.
Persons entitled to vote a majority in principal amount of the Outstanding Debt
Securities of a series shall constitute a quorum at a meeting of Holders of Debt
Securities of such series, except that in the absence of a quorum, a meeting
called by the Company or the Trustee shall be adjourned for a period of not less
than 10 days, and in the absence of a quorum at any such adjourned meeting, the
meeting shall be further adjourned for a period of not less than 10 days, at
which further adjourned meeting persons entitled to vote 25% in aggregate
principal amount of the Outstanding Debt Securities of such series shall
constitute a quorum. Except for any consent which must be given by the Holder of
each Outstanding Debt Security affected thereby, as described above under
"Modification of the Indentures", and subject to the provisions described in the
last sentence under this subheading, any resolution presented at a meeting or
adjourned meeting duly reconvened at which a quorum is present may be adopted by
the affirmative vote of the lesser of (i) the Holders of a majority in principal
amount of the Outstanding Debt Securities of that series and (ii) 66 2/3% in
aggregate principal amount of Outstanding Debt Securities of such series
represented and voting at the meeting; provided, however, that any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of
Outstanding Debt Securities of a series may be adopted at a meeting or adjourned
meeting duly reconvened at which a quorum is present by the affirmative vote of
the lesser of (i) the Holders of such specified percentage in principal amount
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<PAGE> 15
of the Outstanding Debt Securities of that series and (ii) a majority in
principal amount of Outstanding Debt Securities of such series represented and
voting at the meeting. Any resolution passed or decision taken at any meeting of
Holders of Debt Securities of any series duly held in accordance with the
applicable Indenture will be binding on all Holders of Debt Securities of that
series and the related coupons. With respect to any consent, waiver or other
action which the applicable Indenture expressly provides may be given by the
Holders of a specified percentage of Outstanding Debt Securities of all series
affected thereby (acting as one class), only the principal amount of Outstanding
Debt Securities of any series represented at a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid and voting in favor of such
action shall be counted for purposes of calculating the aggregate principal
amount of Outstanding Debt Securities of all series affected thereby favoring
such action.
NOTICES
Except as otherwise provided in each Indenture, notices to Holders of
Bearer Securities will be given by publication at least once in a daily
newspaper in The City of New York and London and in such other city or cities as
may be specified in such Bearer Securities and will be mailed to such Persons
whose names and addresses were previously filed with the Trustee under the
applicable Indenture, within the time prescribed for the giving of such notice.
Notices to Holders of Registered Securities will be given by mail to the
addresses of such Holders as they appear in the Security Register.
TITLE
Title to any Bearer Securities and any coupons appertaining thereto will
pass by delivery. The Company, the appropriate Trustee and any agent of the
Company or such Trustee may treat the bearer of any Bearer Security and the
bearer of any coupon and the registered owner of any Registered Security
(including Registered Securities in global registered form) as the absolute
owner thereof (whether or not such Debt Security or coupon shall be overdue and
notwithstanding any notice to the contrary) for the purpose of making payment
and for all other purposes.
REGARDING THE TRUSTEES
Senior Trustee
The Company and an affiliate of the Company each has a credit facility with
the Senior Trustee.
Subordinated Trustee
The Company and an affiliate of the Company each has a credit facility with
the Subordinated Trustee.
PLAN OF DISTRIBUTION
The Company may sell all or part of the Debt Securities to or through one
or more underwriters for public offering and sale by them, and also may sell
Debt Securities directly to investors or through one or more agents.
Any particular series of Debt Securities may be acquired by such
underwriter(s) for their own account and may be resold from time to time in one
or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. In
connection with the sale of Debt Securities, underwriters, dealers and agents
may receive compensation from the Company or from purchasers of Debt Securities
in the form of discounts, concessions or commissions. Underwriters, dealers and
agents who participate in the distribution of Debt Securities may be deemed to
be underwriters, and any discounts or commissions received by them from the
Company and any profit on the resale of Debt Securities by them may be deemed to
be underwriting discounts and commissions under the Securities Act of 1933, as
amended. Any such underwriter, dealer or agent will be identified, and any such
compensation received from the Company will be described, in the Prospectus
Supplement. Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
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<PAGE> 16
Under agreements which may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of Debt Securities may be
entitled to indemnification by the Company against certain liabilities,
including certain liabilities under the Securities Act of 1933, as amended.
LEGAL OPINIONS
The legality of the Debt Securities will be passed upon for the Company by
Winthrop, Stimson, Putnam & Roberts, New York, New York. Certain legal matters
in connection with the Debt Securities will be passed upon for any underwriters
or agents by Simpson Thacher & Bartlett (a partnership which includes
professional corporations), New York, New York.
EXPERTS
The financial statements incorporated in this Prospectus by reference to
the Company's Annual Report on Form 10-K for the year ended December 31, 1994
have been so incorporated in reliance on the report of Price Waterhouse LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses to be paid by the Company in connection with the
issuance and distribution of the securities being registered, other than
underwriting discounts and commissions, are as follows:
<TABLE>
<S> <C>
SEC Registration Fee........................................... $ 206,897
Legal Fees and Expenses........................................ 250,000
Accounting Fees and Expenses................................... 100,000
Printing Fees and Expenses..................................... 90,000
Cost of Preparation of Securities.............................. 30,000
Fees and Expenses of Trustees.................................. 35,000
Blue Sky Fees and Expenses..................................... 20,000
Rating Agency Fees............................................. 200,000
Miscellaneous.................................................. 68,103
----------
Total................................................ $1,000,000
=========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of Title 8 of the Delaware Code gives a corporation power to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The same Section also
gives a corporation power to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending, or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for their expenses which the Court of Chancery or such other court
shall deem proper. Also, the Section states that, to the extent that a director,
officer, employee or agent of a corporation has been successful on the merits or
otherwise in defense of any such action, suit or proceeding, or in defense of
any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
The By-Laws of the Company provide that the Company shall indemnify the
officers and directors of the Company to the extent permitted by the General
Corporation Law of the State of Delaware.
The officers and directors of the Company are included under an insurance
policy covering its liabilities and expenses and those of its subsidiaries which
might arise in connection with the lawful indemnification of its directors and
officers and those of its subsidiaries for certain of their liabilities and
expenses and also covering these officers and directors against certain other
liabilities and expenses.
II-1
<PAGE> 18
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBITS
----------- -------------------------------------------------------------------------------
<S> <C> <C>
(1)(a) -- Form of Underwriting Agreement.
(1)(b) -- Form of Agency Agreement.
(4) -- Forms of Debt Securities*:
(4)(a) -- General Form of Senior Debt Security (incorporated by reference to Exhibit 4(a)
to the Company's Registration Statement on Form S-3 (No. 33-36699) (the "1990
Registration Statement")).
(4)(b) -- Form of Fixed Rate Registered Medium-Term Note (for offerings within the United
States) (incorporated by reference to Exhibit 4(b) to the 1990 Registration
Statement).
(4)(c) -- Form of Floating Rate Registered Medium-Term Note (for offerings within the
United States) (incorporated by reference to Exhibit 4(c) to the 1990
Registration Statement).
(4)(d) -- Form of Global Fixed Rate Note in connection with Book-Entry Securities
(incorporated by reference to Exhibit 4(d) to the 1990 Registration Statement).
(4)(e) -- Form of Global Floating Rate Note in connection with Book-Entry Securities
(incorporated by reference to Exhibit 4(e) to the 1990 Registration Statement).
(4)(f) -- General Form of Subordinated Debt Security (incorporated by reference to
Exhibit 4(f) to the 1990 Registration Statement).
(4)(g) -- Indenture dated as of between the Company and The Bank of New
York, as Trustee.
(4)(h) -- Indenture dated as of between the Company and The Bank of New
York, as Trustee.
(4)(i) -- Form of the Company's Standard Multiple-Series Indenture Provisions.
(5) -- Opinion of Winthrop, Stimson, Putnam & Roberts as to the legality of the
securities being registered.
(12) -- Statement re: computation of ratios.
(23)(a) -- Consent of Price Waterhouse LLP.
(23)(b) -- Consent of Winthrop, Stimson, Putnam & Roberts (contained in Exhibit 5).
(24) -- Powers of attorney (see page II-4).
(25)(a) -- Statement of eligibility of Senior Trustee.
(25)(b) -- Statement of eligibility of Subordinated Trustee.
</TABLE>
------------
* In the event that the Company issues a form of Debt Security not filed as an
exhibit to this Registration Statement, the Company will file such form of
Debt Security in a Current Report on Form 8-K.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act"), unless the information
required to be included in such post-effective amendment is contained in
a periodic report filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") and incorporated herein by
reference;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement, unless the information required to be
included in such post-effective amendment is
II-2
<PAGE> 19
contained in a periodic report filed with or furnished to the Commission
by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act and incorporated herein by reference;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-3
<PAGE> 20
POWER OF ATTORNEY
Each director and/or officer of the Registrant whose signature appears
below hereby constitutes and appoints Stephen F. Adams and James A. Bare, and
each of them severally, as his true and lawful attorney-in-fact to sign in his
name and behalf, in any and all capacities stated below, and to file with the
Commission, any and all amendments, including post-effective amendments, to this
registration statement.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3, including, by the time of effectiveness,
the security rating for the securities registered required thereby, and has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Tampa, State of Florida,
on this 31st day of March, 1995.
ARISTAR, INC.
By /s/ MICHAEL M. PAPPAS
Michael M. Pappas, President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ MICHAEL M. PAPPAS President and Director March 31, 1995
Michael M. Pappas (Principal Executive
Officer)
/s/ JAMES A. BARE Senior Vice President March 31, 1995
James A. Bare and Chief Financial
Officer and Director
(Principal Accounting
Officer)
/s/ CARL F. GEUTHER Director March 31, 1995
Carl F. Geuther
/s/ J. LANCE ERIKSON Director March 31, 1995
J. Lance Erikson
</TABLE>
II-4
<PAGE> 21
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBITS
----------- -------------------------------------------------------------------------------
<S> <C> <C>
(1)(a) -- Form of Underwriting Agreement.
(1)(b) -- Form of Agency Agreement.
(4) -- Forms of Debt Securities*:
(4)(a) -- General Form of Senior Debt Security (incorporated by reference to Exhibit 4(a)
to the Company's Registration Statement on Form S-3 (No. 33-36699) (the "1990
Registration Statement")).
(4)(b) -- Form of Fixed Rate Registered Medium-Term Note (for offerings within the United
States) (incorporated by reference to Exhibit 4(b) to the 1990 Registration
Statement).
(4)(c) -- Form of Floating Rate Registered Medium-Term Note (for offerings within the
United States) (incorporated by reference to Exhibit 4(c) to the 1990
Registration Statement).
(4)(d) -- Form of Global Fixed Rate Note in connection with Book-Entry Securities
(incorporated by reference to Exhibit 4(d) to the 1990 Registration Statement).
(4)(e) -- Form of Global Floating Rate Note in connection with Book-Entry Securities
(incorporated by reference to Exhibit 4(e) to the 1990 Registration Statement).
(4)(f) -- General Form of Subordinated Debt Security (incorporated by reference to
Exhibit 4(f) to the 1990 Registration Statement).
(4)(g) -- Indenture dated as of between the Company and The Bank of New
York, as Trustee.
(4)(h) -- Indenture dated as of between the Company and The Bank of New
York, as Trustee.
(4)(i) -- Form of the Company's Standard Multiple-Series Indenture Provisions.
(5) -- Opinion of Winthrop, Stimson, Putnam & Roberts as to the legality of the
securities being registered.
(12) -- Statement re: computation of ratios.
(23)(a) -- Consent of Price Waterhouse LLP.
(23)(b) -- Consent of Winthrop, Stimson, Putnam & Roberts (contained in Exhibit 5).
(24) -- Powers of attorney (see page II-4).
(25)(a) -- Statement of eligibility of Senior Trustee.
(25)(b) -- Statement of eligibility of Subordinated Trustee.
</TABLE>
------------
* In the event that the Company issues a form of Debt Security not filed as an
exhibit to this Registration Statement, the Company will file such form of
Debt Security in a Current Report on Form 8-K.
<PAGE> 1
Exhibit 1(a)
DRAFT
3/28/95
ARISTAR, INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT BASIC PROVISIONS
March __, 1995
The basic provisions set forth herein are intended to be
incorporated by reference in a terms agreement (a "Terms Agreement") of the
type referred to in Paragraph 2 hereof. With respect to any particular Terms
Agreement, the Terms Agreement, together with the provisions hereof
incorporated therein by reference, is herein referred to as this "Agreement".
Terms defined in the Terms Agreement are used herein as therein defined.
The Company may issue and sell from time to time series of its
debt securities registered under the registration statement referred to in
Paragraph 1(a) hereof (the "Securities"). The Securities may have varying
designations, denominations, interest rates and payment dates, maturities,
redemption provisions and selling prices, with all such terms for any
particular series of Securities (together with any other terms relating to such
series) to be determined and set forth in the Terms Agreement relating to the
series.
1. The Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 (File No. 33-_____)
with respect to the Securities has been prepared and filed by the Company in
conformity with the requirements of the Securities Act of 1933, as amended (the
"Act"), and the rules and regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder and has become
effective. The Indenture pursuant to which the Underwritten Securities will be
issued (the "Indenture") has been qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"). As used in this Agreement, (i)
"Preliminary Prospectus" means each prospectus (including all documents
incorporated therein by reference) included in such registration statement, and
amendments or supplements thereof, before it became effective under the Act,
including any prospectus filed
<PAGE> 2
with the Commission pursuant to Rule 424(a) of the Rules and Regulations; (ii)
"Registration Statement" means such registration statement when it became
effective under the Act, and as from time to time amended or supplemented
thereafter at the time of effectiveness of such amendment or filing of such
supplement with the Commission (including all documents incorporated therein by
reference); (iii) "Basic Prospectus" means the prospectus (including all
documents incorporated therein by reference) included in the Registration
Statement; and (iv) "Prospectus" means the Basic Prospectus, together with any
amendments or supplements (including in each case all documents incorporated
therein by reference), as filed with, or transmitted by a means reasonably
calculated to result in filing with, the Commission pursuant to paragraph (b) of
Rule 424 of the Rules and Regulations. The Commission has not issued any order
preventing or suspending the use of the Prospectus.
(b) The Registration Statement did, as of the time it became
effective, and will, as of each filing of the Company's most recent annual
report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the Prospectus did, as of its issue
date, comply as to form in all material respects with the Act, the Exchange
Act, the Trust Indenture Act, and the rules and regulations of the Commission
under such Acts; the Indenture, including any amendments and supplements
thereto, conforms, and will conform, in all material respects with the
requirements of the Trust Indenture Act and the rules and regulations of the
Commission thereunder; the Registration Statement did not, as of the time it
became effective, and will not, as of each filing of the Company's most recent
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act, contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and the Prospectus does not and will not as of the Delivery Date
(as hereinafter defined) contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading;
PROVIDED, HOWEVER, that the Company makes no representation or warranty as to
information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written information
furnished to the Company through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein, or to any statements in or
omissions from the statement of eligibility and qualification on Form T-l of
the Trustee under the Trust Indenture Act.
(c) Neither the Company nor any of its majority-owned
subsidiaries (as defined in Rule 405 of the Rules and Regulations, and
hereinafter called "Subsidiaries") is in violation of its corporate charter or
by-laws or in default in
-2-
<PAGE> 3
the observance or performance of any agreement, indenture or instrument, the
effect of which violation or default would be material to the Company and its
Subsidiaries taken as a whole; the execution, delivery and performance of this
Agreement and the Indenture and compliance by the Company with the provisions of
the Underwritten Securities and the Indenture have been duly authorized by all
necessary corporate action and will not conflict with, result in the creation or
imposition of any lien, charge or encumbrance upon any of the assets of the
Company or any of its Subsidiaries pursuant to the terms of, or constitute a
default in the observance or performance of, any agreement, indenture or
instrument, or result in a violation of the corporate charter or by-laws of the
Company or any of its Subsidiaries or any order, statute, rule or regulation of
any court or governmental agency having jurisdiction over the Company, any of
its Subsidiaries or their respective properties, the effect of which conflict,
lien, charge, encumbrance, default or violation would be material to the Company
and its Subsidiaries taken as a whole; and except as required by the Act, the
Trust Indenture Act, the Exchange Act and applicable state securities laws, no
consent, authorization or order of, or filing or registration with, any court or
governmental agency is required for the execution, delivery and performance of
this Agreement or the Indenture.
(d) From the dates as of which information is given in the
Registration Statement and the Prospectus, and except as described therein, (i)
there has not been any material adverse change in the financial condition or
results of operations of the Company and its Subsidiaries taken as a whole and
(ii) there has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock. There is no financial
support agreement between the Company and Great Western Financial Corporation
("Great Western") or any affiliate thereof respecting the business relationship
between the two parties.
(e) To the best knowledge of the Company, Price Waterhouse,
whose report appears in the Company's Annual Report on Form 10-K incorporated
by reference in the Prospectus, are independent public accountants as required
by the Act and the Rules and Regulations.
(f) (i) As of the Delivery Date, the Indenture will have been
duly executed and delivered and validly authorized by the Company and will
constitute the legally binding obligation of the Company enforceable in
accordance with its terms (except as enforcement thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other laws relating to or affecting creditors' rights generally, by general
equity principles or by an implied covenant of good faith and fair dealing),
(ii) the Underwritten Securities have been validly
-3-
<PAGE> 4
authorized for issuance and sale pursuant to this Agreement and, upon
execution, authentication, delivery and payment therefor as provided in this
Agreement and the Indenture, will be validly issued and outstanding, and will
constitute legally binding obligations of the Company enforceable in accordance
with their terms (except as enforcement of the Underwritten Securities may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other laws relating to or affecting creditors' rights generally,
by general equity principles or by an implied covenant of good faith and fair
dealing) and entitled to the benefits of the Indenture, and (iii) the
Underwritten Securities and the Indenture conform in all material respects to
the descriptions thereof contained in the Prospectus.
(g) The Company has been duly incorporated, is validly
existing and is in good standing under the laws of its jurisdiction of
incorporation; each of the Subsidiaries has been duly incorporated, is validly
existing and is in good standing under the laws of their respective
jurisdictions of incorporation (except where the failure to be so incorporated
or to be in good standing would not have a material adverse effect on the
Company and its Subsidiaries taken as a whole); to the best knowledge of the
Company, the Company and each of its Subsidiaries are duly qualified to do
business and in good standing as foreign corporations in each jurisdiction in
which their respective ownership or leasing of property or the conduct of their
respective businesses requires such qualification, and have the corporate power
and authority necessary to own, lease and operate their respective properties
and to conduct the businesses in which they are engaged, except where the
failure to so qualify or to have such power and authority would not have a
material adverse effect on the Company and its Subsidiaries taken as a whole;
and the capital stock of each Subsidiary is owned by the Company, directly or
through Subsidiaries, free and clear of any mortgage, pledge, lien, claim or
encumbrance.
(h) Except as described in the Prospectus, there is no
material litigation or governmental proceeding pending or, to the knowledge of
the Company, threatened against the Company or any of its Subsidiaries which
would result in any material adverse change in the financial condition or
results of operations of the Company and its Subsidiaries taken as a whole or
which is required to be disclosed in the Registration Statement.
(i) The financial statements filed as part of the
Registration Statement or included or incorporated in any Preliminary
Prospectus or the Prospectus present, and will present as of the Delivery Date,
fairly the financial condition and results of operations of the entities
purported to be shown thereby, at the dates and for the periods indicated, and
have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods
-4-
<PAGE> 5
involved; and the supporting schedules included or incorporated in the
Registration Statement present fairly the information required to be stated
therein.
(j) The documents incorporated by reference into any
Preliminary Prospectus or the Prospectus have been, and any documents
subsequently incorporated by reference will be, as of the applicable filing
date, prepared by the Company in conformity with the applicable requirements of
the Act and the Rules and Regulations and the Exchange Act and the rules and
regulations of the Commission thereunder; and such documents have been or will
be as of the Delivery Date timely filed as required thereby.
(k) There are no contracts or other documents which are
required to be filed as exhibits to the Registration Statement by the Act or by
the Rules and Regulations, or which were required to be filed as exhibits to
any document incorporated by reference in the Prospectus by the Exchange Act or
the rules and regulations of the Commission thereunder, which have not been
filed as exhibits to the Registration Statement or to such documents, or
incorporated therein by reference as permitted by the Rules and Regulations or
the rules and regulations of the Commission under the Exchange Act, as the case
may be.
(l) All of the authorized, issued and outstanding capital
stock of the Company has been duly authorized and validly issued and is fully
paid and non-assessable and is owned, directly or indirectly, by Great Western.
(m) The Company and each of its Subsidiaries have all
licenses, approvals and consents for the conduct of their respective
businesses, the failure of which to have would have a material adverse effect
on the business of the Company and the Subsidiaries taken as a whole.
2. The obligation of the Underwriters to purchase, and the
Company to sell, the Underwritten Securities is evidenced by a Terms Agreement
delivered at the time the Company determines to sell the Underwritten
Securities. The Terms Agreement specifies the firm or firms which will be
Underwriters, the principal amount of the Underwritten Securities to be
purchased by each Underwriter, the purchase price to be paid by the
Underwriters for the Underwritten Securities, the public offering price, if
any, of the Underwritten Securities, certain terms thereof and the
Underwriters' compensation therefor, any of the terms of the Underwritten
Securities not already specified in the Indenture (including, but not limited
to, designations, denominations, interest rate or rates (and method of
calculation thereof) and payment dates, maturity, redemption provisions and
sinking fund requirements) and the written information that has been furnished
-5-
<PAGE> 6
to the Company through the Representatives by or on behalf of any Underwriter
specifically for inclusion in the Registration Statement or the Prospectus.
The Terms Agreement also specifies any details of the terms of the offering
which should be reflected in a post-effective amendment to the Registration
Statement or the supplement to the Prospectus relating to the offering of the
Underwritten Securities.
3. The Company shall not be obligated to deliver any
Underwritten Securities except upon payment for all the Underwritten Securities
to be purchased pursuant to this Agreement as hereinafter provided.
4. If any Underwriter defaults in the performance of its
obligations under this Agreement, the remaining non- defaulting Underwriters
shall be obligated to purchase the Underwritten Securities which the defaulting
Underwriter agreed but failed to purchase in the respective proportions which
the principal amount of Underwritten Securities set forth in the Terms
Agreement to be purchased by each remaining non-defaulting Underwriter set
forth therein bears to the aggregate principal amount of Underwritten
Securities set forth therein to be purchased by all the remaining
non-defaulting Underwriters; PROVIDED, HOWEVER, that the remaining
non-defaulting Underwriters shall not be obligated to purchase any Underwritten
Securities if the aggregate principal amount of Underwritten Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase
exceeds 9.09% of the total principal amount of Underwritten Securities, and any
remaining non-defaulting Underwriter shall not be obligated to purchase more
than 110% of the principal amount of Underwritten Securities set forth in the
Terms Agreement to be purchased by it. If the foregoing maximums are exceeded,
the remaining non-defaulting Underwriters, or those other underwriters
satisfactory to the Representatives who so agree, shall have the right, but
shall not be obligated, to purchase, in such proportion as may be agreed upon
among them, all the Underwritten Securities. If the remaining Underwriters or
other underwriters satisfactory to the Representatives do not elect to purchase
the Underwritten Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase, this Agreement shall terminate without liability
on the part of any non-defaulting Underwriter or the Company, except that the
Company will continue to be liable for the payment of expenses as set forth in
Paragraphs 6(k) and 10 hereof.
Nothing contained in this Paragraph shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
its default. If other underwriters are obligated or agree to purchase the
Underwritten Securities of a defaulting or withdrawing Underwriter, either the
Representatives or the Company may postpone the Delivery Date for up to seven
full business days in order to effect any changes
-6-
<PAGE> 7
that in the opinion of counsel for the Company or counsel for the Underwriters
may be necessary in the Registration Statement, the Prospectus or in any other
document or arrangement.
5. Delivery of and payment for the Underwritten Securities
shall be made at the office of the Representatives at such address and time as
may be specified in the Terms Agreement. This date and time are sometimes
referred to as the "Delivery Date". On the Delivery Date the Company shall
deliver the Underwritten Securities to the Representatives for the account of
each Underwriter against payment to or upon the order of the Company of the
purchase price by (i) certified or official bank check or checks payable in New
York Clearing House funds or (ii) wire transfer of immediately available funds,
as shall be specified in the Terms Agreement. Time shall be of the essence,
and delivery at the time and place specified pursuant to this Agreement is a
further condition of the obligation of each Underwriter hereunder. Upon
delivery, the Underwritten Securities shall be in definitive fully registered
form and in such denominations and registered in such names as the
Representatives shall request in writing not less than two full business days
prior to the Delivery Date. For the purpose of expediting the checking and
packaging of the Underwritten Securities, the Company shall make the
Underwritten Securities available for inspection by the Representatives in New
York, New York (or such other place as may be specified by the Representatives)
not later than 2:00 P.M., New York City time, at least two business days prior
to the Delivery Date.
6. The Company covenants and agrees with the Representatives
as follows:
(a) To furnish promptly to the Representatives and to their
counsel a signed copy of the Registration Statement as originally filed and
each amendment thereto, and a copy of each Prospectus filed with the
Commission, including all supplements thereto and all documents incorporated
therein by reference and all consents and exhibits filed therewith;
(b) To deliver promptly to the Representatives such number of
the following documents as they may reasonably request: (i) conformed copies
of the Registration Statement (excluding exhibits other than the computation of
the ratio of earnings to fixed charges, the Indenture and this Agreement), (ii)
each Preliminary Prospectus, the Basic Prospectus and the Prospectus and any
supplement thereto and (iii) any documents incorporated by reference in the
Prospectus;
(c) If, during any period in which, in the opinion of counsel
for the Representatives, a prospectus relating to the Underwritten Securities
is required to be delivered under the Act, any event occurs as a result of
which the Prospectus would
-7-
<PAGE> 8
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if it is necessary
at any time to amend the Prospectus to comply with the Act, to immediately
notify the Representatives and to promptly prepare and file (subject to (e)
below) with the Commission an amendment or supplement which will effect such
compliance (PROVIDED, HOWEVER, that if such amendment or supplement of the
Prospectus shall be filed after the nine-month period commencing on the date
hereof, the Representatives shall pay the costs incurred in connection with the
preparation of such amendment or supplement);
(d) To timely file (subject to (e) below) with the Commission
during any period in which, in the opinion of counsel for the Representatives,
any Prospectus is required by law to be delivered in connection with sales of
the Underwritten Securities, all documents (and any amendments to previously
filed documents) required to be filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act;
(e) Prior to filing with the Commission any (i) amendment or
supplement to the Registration Statement, (ii) Prospectus or any amendment or
supplement thereto or (iii) document incorporated by reference in any of the
foregoing or any amendment of or supplement to any such incorporated document,
to furnish a copy thereof to the Representatives and their counsel and to
provide the Representatives an opportunity to comment thereon;
(f) To advise the Representatives immediately (i) when any
post-effective amendment to the Registration Statement relating to or covering
the Underwritten Securities becomes effective, (ii) of any request or proposed
request by the Commission for an amendment or supplement to the Registration
Statement, to the Prospectus, to any document incorporated by reference in any
of the foregoing or for any additional information, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or any order directed to the Prospectus or any document
incorporated therein by reference or the initiation or threat of any stop order
proceeding or of any challenge to the accuracy or adequacy of any document
incorporated by reference in the Prospectus, (iv) of receipt by the Company of
any notification with respect to the suspension of the qualification of the
Underwritten Securities for sale in any jurisdiction or the initiation or
threat of any proceeding for that purpose and (v) of the happening of any event
which makes untrue any statement of a material fact made in the Registration
Statement or the Prospectus or which requires the making of a change in the
Registration Statement or the Prospectus in order to make any statement of a
material fact therein not misleading;
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<PAGE> 9
(g) If the Commission shall issue a stop order suspending the
effectiveness of the Registration Statement, to make every reasonable effort to
obtain the lifting of that order at the earliest possible time;
(h) To make generally available to its security holders and
to deliver to the Representatives, in each case as soon as practicable, an
earnings statement (in form complying with the provisions of Section 11(a) of
the Act and Rule 158 thereunder and which need not be certified by independent
certified public accountants unless required by the Act or the Rules and
Regulations) covering the period beginning not later than the first day of the
fiscal quarter next following each date which (i) under Section 11(a) of the
Act and the Rules and Regulations is an "effective date" (as defined in Rule
158) of the Registration Statement for purposes of said Section 11(a), and (ii)
is not later than the Delivery Date;
(i) For one year after the Delivery Date, to furnish to the
Representatives, promptly after the time the Company makes the same available
to others, copies of all public reports or releases and all reports and
financial statements furnished by the Company to any securities exchange
pursuant to requirements of or agreements with such exchange or to the
Commission pursuant to the Exchange Act or any rule or regulation of the
Commission thereunder;
(j) To endeavor, in cooperation with the Representatives, to
qualify the Underwritten Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Representatives may reasonably designate, and to maintain such
qualifications in effect for as long as may be reasonably required for the
distribution of the Underwritten Securities. The Company will file such
statements and reports as may be required by the laws of each jurisdiction in
which the Underwritten Securities have been qualified as above provided;
(k) To pay (i) the costs incident to the authorization,
issuance, sale and delivery of the Underwritten Securities and any taxes
payable in that connection, (ii) the costs incident to the preparation,
printing and filing under the Act of the Registration Statement and any
amendments, supplements and exhibits thereto, (iii) the costs incident to the
preparation, printing and filing of any document and any amendments and
exhibits thereto required to be filed by the Company under the Exchange Act,
(iv) the costs of distributing the Registration Statement, as originally filed,
and each amendment and post-effective amendment thereof (including exhibits),
any Preliminary Prospectus, the Basic Prospectus, the Prospectus, any
supplement or amendment to the Prospectus and any documents incorporated by
reference in any of the foregoing documents, (v) the costs of
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<PAGE> 10
distributing the terms of the agreement relating to the organization of the
underwriting syndicate to the Underwriters by mail, telex or other means of
communication, (vi) the costs of typing this Agreement, (vii) the costs and
fees in connection with the listing of the Securities on any securities
exchange, (viii) the costs of any filings with the National Association of
Securities Dealers, Inc., (ix) the fees and disbursements of counsel to the
Company, (x) the fees paid to rating agencies in connection with the rating of
the Securities, including the Underwritten Securities, (xi) the fees and
expenses of qualifying the Securities, including the Underwritten Securities,
under the securities laws of the several jurisdictions as provided in this
Paragraph, and of preparing and printing a Blue Sky Memorandum and a memorandum
concerning the legality of the Securities, including the Underwritten
Securities, as an investment (including fees and expenses of counsel to the
Representatives in connection therewith), and (xii) all other costs and
expenses incident to the performance of the Company's obligations under this
Agreement; PROVIDED, THAT, except as provided in this Paragraph and in
Paragraph 10 hereof, the Underwriters shall pay their own costs and expenses,
including the fees and expenses of their counsel, any transfer taxes on the
Underwritten Securities which they may sell and the expenses of advertising any
offering of the Underwritten Securities made by the Underwriters; and
(l) During the period beginning on the date of the Terms
Agreement and continuing to the Delivery Date, without the prior consent of the
Representatives, not to offer or sell, or enter into any agreement to sell, any
debt securities of the Company other than borrowings under the Company's
revolving credit agreements and lines of credit, the private placement of
securities, borrowings from Great Western or any affiliate thereof and
issuances in the ordinary course of business of the Company's commercial paper.
7. (a) The Company shall indemnify and hold harmless each
Underwriter, each other person, if any, who is participating with the
Underwriters in the distribution of the Underwritten Securities who is an
"underwriter" within the meaning of Section 2(11) of the Act with respect to
the distribution of the Underwritten Securities (the "Participants") and each
person, if any, who controls any Underwriter or any Participant within the
meaning of Section 15 of the Act from and against any loss, claim, damage or
liability, joint or several, and any action in respect thereof, to which such
Underwriter or such Participant or controlling person may become subject, under
the Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or arises out of, or
is
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<PAGE> 11
based upon, the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and shall reimburse each Underwriter, each Participant and each
controlling person for any legal and other expenses reasonably incurred, as
incurred, by such Underwriter or such Participant or controlling person in
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action; PROVIDED, HOWEVER, (i) that the Company shall not
be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the Prospectus in
reliance upon and in conformity with written information furnished to the
Company through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein; and (ii) that with respect to any
Preliminary Prospectus or Prospectus, the foregoing indemnification shall not
inure to the benefit of any Underwriter, any Participant or any person
controlling that Underwriter or Participant on account of any loss, claim,
damage, liability or action arising from the purchase of Securities by any
person from that Underwriter or Participant, if that Underwriter or Participant
in fact failed to send or give a copy of the Prospectus provided by the Company
in accordance with Paragraph 6(b) hereof (as such Prospectus may then be
amended or supplemented, in each case exclusive of the documents incorporated
therein by reference) to that person within the time required by the Act;
PROVIDED, HOWEVER, that subparagraph (ii) above shall not apply (X) where such
loss, claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact in such Preliminary Prospectus or
Prospectus and such untrue statement, alleged untrue statement, omission or
alleged omission, was not corrected in the Prospectus (or the amendment or
supplement thereto) or (Y) where the failure to deliver such Prospectus (or the
amendment or supplement thereto) resulted from noncompliance by the Company
with Paragraph 6(b) hereof. The foregoing indemnity agreement is in addition
to any liability which the Company may otherwise have to any Underwriter, any
Participant or controlling person.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, each of its directors, each of its
officers who signed the Registration Statement and any person who controls the
Company within the meaning of Section 15 of the Act from and against any loss,
claim, damage or liability, joint or several, and any action in respect
thereof, to which the Company or any such director, officer or controlling
person may become subject, under the Act, the Exchange Act or federal or state
statutory law or regulation, at common law or otherwise, insofar as such loss,
claim, damage, liability or
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<PAGE> 12
action arises out of, or is based upon, any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or arises out of, or is based upon,
the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company through the
Representatives by or on behalf of that Underwriter specifically for inclusion
therein, and shall reimburse the Company or any such director, officer or
controlling person for any legal and other expenses reasonably incurred, as
incurred, by the Company or any such director, officer or controlling person in
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action. The foregoing indemnity agreement is in addition
to any liability which any Underwriter may otherwise have to the Company or any
of its directors, officers or controlling persons.
(c) Promptly after receipt by an indemnified party under this
Paragraph of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this Paragraph, notify the indemnifying party in
writing of the claim or the commencement of that action; PROVIDED, HOWEVER,
that the failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Paragraph except to the extent that it has been prejudiced in any material
respect by such failure or from any liability which it may have otherwise. If
any such claim or action shall be brought against an indemnified party, and it
shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein, and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall not be
liable to the indemnified party under this Paragraph 7 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; PROVIDED,
HOWEVER, any indemnified party shall have the right to employ separate counsel
in any such claim or action and to participate in the defense thereof but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the employment thereof has been specifically authorized by the
indemnifying party in writing, (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are
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<PAGE> 13
different from or additional to those available to the indemnifying party and
in the reasonable judgment of such counsel it is advisable for such indemnified
party to employ separate counsel or (iii) the indemnifying party has failed to
assume the defense of such claim or action and employ counsel reasonably
satisfactory to the indemnified party, in which case, if such indemnified party
notifies the indemnifying party in writing that it elects to employ separate
counsel at the expense of the indemnifying party, the indemnifying party shall
not have the right to assume the defense of such claim or action on behalf of
such indemnified party, it being understood, however, that the indemnifying
party shall not, in connection with any one such claim or action or separate
but substantially similar or related claims or actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any
time for all such indemnified parties, which firm shall be designated in
writing by the Representatives, if the indemnified parties under this Paragraph
consist of any Underwriter, any Participant or any of their respective
controlling persons, or by the Company, if the indemnified parties under this
Paragraph consist of the Company or any of its directors, officers or
controlling persons. Each indemnified party, as a condition of the indemnity
agreements contained in Paragraph 7(a) and 7(b) hereof, shall use its best
efforts to cooperate with the indemnifying party in the defense of any such
claim or action. The indemnifying party shall not be liable for any settlement
of any such claim or action effected without its written consent (which consent
shall not be unreasonably withheld), but if settled with its written consent or
if there be a final judgment in favor of the plaintiff in any such claim or
action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Paragraph
shall for any reason be unavailable to an indemnified party under Paragraph
7(a) or 7(b) hereof in respect of any loss, claim, damage or liability, or any
action in respect thereof, referred to therein, then each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof, (i) in such proportion as
shall be appropriate to reflect the relative benefits received by the Company
on the one hand and the Underwriters and the Participants on the other from the
offering of the Underwritten Securities, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the
Underwriters and the Participants on the other with respect to
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<PAGE> 14
the statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters and the Participants on the other with respect to
such offering shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Underwritten Securities (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters and the Participants with respect to
such offering in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this Paragraph 7(d) were
to be determined by pro rata allocation or by any other method of allocation
(even if the Underwriters and the Participants were treated as one entity for
such purpose) which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Paragraph 7(d) shall be deemed to include, for
purposes of this Paragraph 7(d), any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Paragraph 7(d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Underwritten
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as provided in
this Paragraph 7(d) are several in proportion to their respective underwriting
obligations and not joint.
(e) The agreements contained in this Paragraph and the
representations, warranties and agreements of the Company contained elsewhere
in this Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall survive the delivery of and payment for the
Underwritten Securities and shall remain operative and in full force and
effect, regardless of the termination of this Agreement
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<PAGE> 15
or any investigation made on behalf of any Underwriter or any person
controlling any Underwriter or by or on behalf of the Company.
8. The obligations of the Underwriters under this Agreement
may be terminated by the Representatives, in their absolute discretion, by
notice given to and received by the Company prior to the delivery of and
payment for the Underwritten Securities, if, during the period beginning on the
date of the Terms Agreement to and including the Delivery Date, (a) trading in
securities generally on the New York Stock Exchange is suspended or minimum
prices are established on that Exchange, or (b) a banking moratorium is
declared by either Federal or New York State authorities, or (c) the United
States is or becomes engaged in hostilities which have resulted in the
declaration of a national emergency, or (d) the rating of any of the Company's
debt securities shall have been lowered by either Moody's Investors Services,
Inc. or Standard & Poor's Corporation or either of such rating agencies shall
have publicly announced that it has placed any of the Company's debt securities
on what is commonly termed a "watch list" for possible downgrading.
9. The respective obligations of the Underwriters under this
Agreement with respect to the Underwritten Securities are subject to the
accuracy in all material respects, on the date of the Terms Agreement and on
the Delivery Date, of the representations and warranties of the Company
contained herein, to the accuracy of the statements of the Company's officers
made in any certificate furnished pursuant to the provisions hereof, to the
performance and observance by the Company in all material respects of all
covenants and agreements contained herein, and to each of the following
additional terms and conditions applicable to the Underwritten Securities:
(a) At or before the Delivery Date, no stop order suspending
the effectiveness of the Registration Statement shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission, nor any order directed to any document incorporated by reference in
any Prospectus shall have been initiated or threatened by the Commission.
(b) Stephen F. Adams, General Counsel and Senior Vice
President of the Company, shall have furnished to the Representatives his
opinion addressed to the Underwriters and dated the Delivery Date, in form and
substance reasonably satisfactory to the Representatives and their counsel, to
the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware;
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<PAGE> 16
(ii) The Company has the corporate power and authority
necessary to own, lease and operate its properties and conduct its
business as described in the Registration Statement;
(iii) To the best of his knowledge, the Company is duly
qualified to do business and in good standing as a foreign corporation
in each jurisdiction in which its conduct of business or its ownership
or leasing of properties requires such qualification and in which the
failure to be so qualified would have a material adverse effect on the
Company and its Subsidiaries taken as a whole;
(iv) All of the issued and outstanding capital stock of
each Subsidiary has been duly authorized and validly issued and is
fully paid and non-assessable, and, except as described in the
Registration Statement, all of such capital stock is owned by the
Company, directly or through Subsidiaries, free and clear of any
mortgage, pledge, lien, claim or encumbrance;
(v) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus and the shares
of the Company's issued and outstanding Common Stock set forth therein
are owned, directly or indirectly, by Great Western;
(vi) Such counsel does not know of any material
litigation or any governmental proceeding pending or threatened
against the Company or any of its Subsidiaries which (individually or
in the aggregate) is or would be required to be disclosed in the
Prospectus which is not disclosed;
(vii) Such counsel does not know of any contracts or
other documents which are required to be filed as exhibits to the
Registration Statement by the Act or by the Rules and Regulations, or
which are required to be filed by the Exchange Act or the rules and
regulations of the Commission thereunder as exhibits to any document
incorporated by reference in the Prospectus, which have not been filed
as exhibits to the Registration Statement or to such document, or
incorporated therein by reference as permitted by the Rules and
Regulations or the rules and regulations of the Commission under the
Exchange Act, as the case may be;
(viii) To the best of such counsel's knowledge, the
Company is not in violation of its corporate charter or by- laws, none
of the Subsidiaries are in violation of their corporate charters or
by-laws, and neither the Company nor any of its Subsidiaries are in
default in the observance or
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<PAGE> 17
performance of any agreement, indenture or instrument, the effect of
which violation or default would be material to the Company and its
Subsidiaries taken as a whole; and
(ix) To the best of his knowledge, the execution,
delivery and performance of this Agreement and compliance by the
Company with the provisions of the Underwritten Securities and the
Indenture will not conflict with, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the assets
of the Company or any of its Subsidiaries pursuant to the terms of, or
constitute a default in the observance or performance of, any material
agreement, indenture or instrument, or result in a violation of the
corporate charter or by-laws of the Company or any of its Subsidiaries
or any order, statute, rule or regulation of any court or governmental
agency having jurisdiction over the Company, any of its Subsidiaries
or their respective properties, the effect of which conflict, lien,
charge, encumbrance, default or violation would be material to the
Company and its Subsidiaries taken as a whole; and no consent,
authorization or order of, or filing or registration with, any court
or governmental agency is required for the execution, delivery and
performance by the Company of this Agreement except such as may be
required by the Act, the Trust Indenture Act, the Exchange Act and
state securities laws.
(c) Winthrop, Stimson, Putnam & Roberts, counsel to the
Company, shall have furnished to the Representatives their opinion addressed to
the Underwriters and dated the Delivery Date, in form and substance reasonably
satisfactory to the Representatives and their counsel, to the effect that:
(i) This Agreement has been duly authorized, executed
and delivered by the Company;
(ii) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding
agreement of the Company, enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other
laws relating to or affecting creditors' rights generally, by general
equity principles or by an implied covenant of good faith and fair
dealing;
(iii) The Underwritten Securities are in a form
contemplated by the Indenture and approved by the board of directors
of the Company and have been duly authorized by all necessary
corporate action and, when executed and authenticated as specified in
the Indenture and delivered against payment therefor in accordance
with this Agreement,
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<PAGE> 18
will be valid and binding obligations of the Company, enforceable in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other laws relating to or affecting
creditors' rights generally, by general equity principles or by an
implied covenant of good faith and fair dealing;
(iv) The Underwritten Securities and the Indenture
conform in all material respects to the statements concerning them in
the Registration Statement and the Prospectus;
(v) The Indenture is qualified under, and complies
as to form in all material respects with, the Trust Indenture Act;
(vi) The Registration Statement is effective under the
Act; no stop order suspending its effectiveness has been issued, and,
to the knowledge of such counsel, no proceeding for that purpose is
pending or threatened by the Commission; and no order directed to any
document incorporated by reference in the Prospectus has been issued
by the Commission;
(vii) The Registration Statement, as of the time it
became effective, and the Prospectus, as of its issue date (except
that, in each case, no opinion need be expressed as to the financial
statements and schedules and other financial and statistical data
contained or incorporated by reference therein), complied as to form in
all material respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations of the Commission under
said Acts, and the documents incorporated by reference in the
Prospectus, when filed with the Commission (except that no opinion need
be expressed as to the financial statements and schedules and other
financial and statistical data contained or incorporated by reference
therein), complied as to form in all material respects with the
applicable requirements of the Exchange Act and the rules and
regulations of the Commission thereunder; and (except that no opinion
need be expressed as to the financial statements and schedules and
other financial and statistical data contained or incorporated by
reference therein) nothing has come to the attention of such counsel to
lead them to believe that the Registration Statement, as of the time it
became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus, as of the Delivery Date, contained any untrue statement of
a material fact or omitted to state a material fact necessary
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<PAGE> 19
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(d) All corporate proceedings and other legal matters
incident to the authorization and validity of this Agreement, and the
authorization, form and validity of the Underwritten Securities, the Indenture,
the Registration Statement, the Prospectus and any supplement, amendment or
incorporated document, other than financial statements and other financial
data, and all other legal matters and transactions contemplated by this
Agreement shall be reasonably satisfactory in all material respects to Simpson
Thacher & Bartlett, counsel for the Underwriters; the Company shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters; and Simpson
Thacher & Bartlett shall have furnished to the Representatives on the Delivery
Date such opinions with respect to such matters as the Representatives may
reasonably request.
(e) (i) Neither the Company nor any of the Subsidiaries shall
be in default (nor shall an event have occurred which, with notice or lapse of
time, or both, would constitute a default) under any provision of any
instrument relating to any outstanding indebtedness of the Company or any of
the Subsidiaries (except where such default would not have a material adverse
effect on the Company and its Subsidiaries taken as a whole) and (ii) no
material amount of the assets of the Company or of the Company and its
Subsidiaries taken as a whole shall have been pledged or mortgaged, except as
referred to in the Registration Statement and Prospectus, as amended or
supplemented.
(f) The Company shall have furnished to the Representatives
on the Delivery Date a certificate, dated the Delivery Date, of its President,
its Chief Financial Officer or its Treasurer to the effect that:
(i) The representations, warranties and agreements of the
Company in Paragraph 1 hereof are true and correct in all material
respects as of the Delivery Date; the Company has complied in all
material respects with all its agreements contained herein and
satisfied in all material respects all conditions on its part to be
performed and satisfied at or prior to the date of such certificate
(except that no certificate need be given in respect of the conditions
set forth in Paragraphs 9(d) and 9(g) hereof); and the conditions set
forth in Paragraph 9(a) hereof which are to be fulfilled at or prior to
the date of such certificate have been fulfilled in all material
respects; and
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<PAGE> 20
(ii) He has reviewed the Registration Statement and the
Prospectus and, in his opinion, (A) the Registration Statement, as of
the time it became effective, did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
(B) the Prospectus does not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, and (C) since the time the Registration
Statement became effective there has not occurred any event required
to be set forth in an amended or supplemented prospectus which has not
been so set forth.
(g) The Company shall have furnished to the Representatives
on the Delivery Date a letter in form and substance reasonably satisfactory to
the Representatives in all respects from Price Waterhouse LLP, addressed to the
Underwriters and dated as of the Delivery Date, of the type described in the
American Institute of Certified Public Accountants' Statement on Auditing
Standards No. 49 and covering such specified financial statement items and
procedures as the Representatives may reasonably request.
(h) No order suspending the sale of the Underwritten
Securities in any jurisdiction material to the distribution of the Underwritten
Securities as contemplated hereby and designated by the Representatives
pursuant to Paragraph 6(j) hereof shall have been issued or in existence, and
no proceeding for that purpose shall have been instituted or, to the knowledge
of the Underwriters or the Company, shall be contemplated.
(i) No Underwriter shall have discovered and disclosed to the
Company on or prior to the Delivery Date that the Registration Statement, the
Prospectus and any amendments or supplements thereto, taken as a whole, contain
an untrue statement of a fact which, in the opinion of counsel to the
Representatives, is material or omits to state a fact which, in the opinion of
such counsel, is material and is required to be stated therein or is necessary
to make the statements therein not misleading.
(j) During the period from the date of the Terms Agreement to
and including the Delivery Date, there shall have occurred no material adverse
change in the financial condition or results of operations of the Company and
its Subsidiaries taken as a whole.
10. If the Company shall fail to tender the Underwritten
Securities for delivery to the Underwriters for any reason permitted under this
Agreement, or if the Underwriters
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<PAGE> 21
shall decline to purchase the Underwritten Securities for any reason permitted
under this Agreement, the Company shall reimburse the Underwriters for the
reasonable fees and expenses of their counsel and for such other reasonable
out-of-pocket expenses as shall have been incurred by them in connection with
this Agreement and the proposed purchase of Underwritten Securities, and upon
demand the Company shall pay the full amount thereof to the Representatives.
If this Agreement is terminated pursuant to Paragraph 4 hereof by reason of the
default of one or more Underwriters, the Company shall not be obligated to
reimburse any defaulting Underwriter on account of those expenses.
11. The Company shall be entitled to act and rely upon any
request, consent, notice or agreement on behalf of the Representatives. Any
notice by the Company to the Underwriters shall be sufficient if given in
writing or by telegraph addressed to the Representatives at such address and
time as may be specified in the Terms Agreement, and any notice by the
Underwriters to the Company shall be sufficient if given in writing or by
telegraph addressed to the Company at 9200 Oakdale Avenue, Chatsworth,
California 91311, Attention of Mr. Bruce F. Antenberg.
12. This Agreement shall be binding upon each Underwriter,
the Company, and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(a) the indemnity agreement of the Company contained in Paragraph 7 hereof
shall also be deemed to be for the benefit of any Participant and the person or
persons, if any, who control any Underwriter or Participant within the meaning
of Section 15 of the Act, and (b) the indemnity agreement of the Underwriters
contained in Paragraph 7 hereof shall be deemed to be for the benefit of
directors of the Company, officers of the Company who have signed the
Registration Statement and any person who controls the Company within the
meaning of Section 15 of the Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Paragraph, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
13. For purposes of this Agreement, "business day" means any
day on which the New York Stock Exchange is open for trading.
14. All representations, warranties and agreements of the
Company contained in this Agreement, or contained in certificates of officers
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of the termination of this Agreement or any investigation made by or
on behalf of the Underwriters or any person controlling the
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<PAGE> 22
Underwriters or by or on behalf of the Company, and shall survive each delivery
of and payment for any of the Underwritten Securities.
15. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. The Terms Agreement may be
executed in one or more counterparts, and if executed in more than one
counterpart the executed counterparts shall together constitute a single
instrument.
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<PAGE> 1
Exhibit 1(b)
DRAFT
3/28/95
$________________
ARISTAR, INC.
Medium-Term Notes, Series __
AGENCY AGREEMENT
______________, ____
[Name and Address of Agents]
Ladies and Gentlemen:
ARISTAR, INC., a Delaware corporation (the "Company"),
confirms its agreement with each of you (individually an "Agent" and
collectively the "Agents") with respect to the issue and sale by the Company of
up to $__________ aggregate principal amount of its Medium-Term Notes, Series
___ (the "Notes"). The Notes are to be issued from time to time pursuant to an
indenture, dated as of _________, 1995 (as it may be supplemented or amended
from time to time, the "Indenture"), between the Company and _________________,
as trustee (the "Trustee").
Subject to the terms and conditions stated herein, and subject
to the reservation by the Company of the right to sell Notes directly to
investors on its own behalf at any time, to sell Notes through other agents on
terms substantially equivalent hereto or to sell Notes to one or more
underwriters in accordance with the terms of an underwriting agreement
substantially in the form previously filed as an exhibit to the Registration
Statement (as hereinafter defined), the Company hereby appoints the Agents the
non-exclusive agents of the Company for the purpose of soliciting offers to
purchase the Notes from the Company by others. This Agreement shall only apply
to sales of the Notes and not to sales of any other securities or evidences of
indebtedness and only on the specific terms set forth herein.
SECTION 1. Representations and Warranties. (a) The Company
represents and warrants to each Agent as of the date hereof, as of the Closing
Date hereinafter referred to and as of the times referred to in Section 6(a)
and 6(b) hereof (each such
<PAGE> 2
time being hereinafter referred to as a "Representation Date"), as follows:
(a) A registration statement on Form S-3 (File No. 33-
) with respect to the Notes has been prepared and filed by the Company in
conformity with the requirements of the Securities Act of 1933, as amended (the
"Act"), and the rules and regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder and has become
effective. The Indenture has been qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"). As used in this Agreement, (i)
"Preliminary Prospectus" means each prospectus (including all documents
incorporated therein by reference) included in such registration statement, and
amendments or supplements thereof, before it became effective under the Act,
including any prospectus filed with the Commission pursuant to Rule 424(a) of
the Rules and Regulations; (ii) "Registration Statement" means such
registration statement when it became effective under the Act, and as from time
to time amended or supplemented thereafter at the time of effectiveness of such
amendment or filing of such supplement with the Commission (including all
documents incorporated therein by reference); (iii) "Basic Prospectus" means
the prospectus (including all documents incorporated therein by reference)
included in the Registration Statement; and (iv) "Prospectus" means the Basic
Prospectus, together with any amendments or supplements (including in each case
all documents incorporated therein by reference), as filed with, or transmitted
by a means reasonably calculated to result in filing with, the Commission
pursuant to paragraph (b) of Rule 424 of the Rules and Regulations. The
Commission has not issued any order preventing or suspending the use of the
Prospectus.
(b) The Registration Statement did, as of the time it became
effective, and will, as of each filing of the Company's most recent annual
report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the Prospectus did, as of its issue
date, comply as to form in all material respects with the Act, the Exchange
Act, the Trust Indenture Act, and the rules and regulations of the Commission
under such Acts; the Indenture, including any amendments and supplements
thereto, conforms, and will conform, in all material respects with the
requirements of the Trust Indenture Act and the rules and regulations of the
Commission thereunder; the Registration Statement did not, as of the time it
became effective, and will not, as of each filing of the Company's most recent
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act, contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and the Prospectus does not and will not as of the applicable
Representation Date contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
light of the circumstances
-2-
<PAGE> 3
under which they were made, not misleading; provided, however, that the Company
makes no representation or warranty as to information contained in or omitted
from the Registration Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
the Agents specifically for inclusion therein, or to any statements in or
omissions from the statement of eligibility and qualification on Form T-l of
the Trustee under the Trust Indenture Act. Each Agent hereby confirms that the
information as to it contained under "Plan of Distribution" in the Prospectus
has been supplied in writing by it to the Company for inclusion therein.
(c) Neither the Company nor any of its majority-owned
subsidiaries (as defined in Rule 405 of the Rules and Regulations, and
hereinafter called "Subsidiaries") is in violation of its corporate charter or
by-laws or in default in the observance or performance of any agreement,
indenture or instrument, the effect of which violation or default would be
material to the Company and its Subsidiaries taken as a whole; the execution,
delivery and performance of this Agreement, the Indenture and each applicable
Purchase Agreement (as defined in Section 11), if any, and compliance by the
Company with the provisions of the Notes and the Indenture have been duly
authorized by all necessary corporate action and will not conflict with, result
in the creation or imposition of any lien, charge or encumbrance upon any of
the assets of the Company or any of its Subsidiaries pursuant to the terms of,
or constitute a default in the observance or performance of, any agreement,
indenture or instrument, or result in a violation of the corporate charter or
by-laws of the Company or any of its Subsidiaries or any order, statute, rule
or regulation of any court or governmental agency having jurisdiction over the
Company, any of its Subsidiaries or their respective properties, the effect of
which conflict, lien, charge, encumbrance, default or violation would be
material to the Company and its Subsidiaries taken as a whole; and except as
required by the Act, the Trust Indenture Act, the Exchange Act and applicable
state securities laws, no consent, authorization or order of, or filing or
registration with, any court or governmental agency is required for the
execution, delivery and performance of this Agreement, each applicable Purchase
Agreement, if any, or the Indenture.
(d) From the dates as of which information is given in the
Registration Statement and the Prospectus, and except as described therein, (i)
there has not been any material adverse change in the financial condition or
results of operations of the Company and its Subsidiaries taken as a whole and
(ii) there has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock. There is no financial
support agreement between the Company and Great Western Financial Corporation
("Great Western") or any affiliate
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<PAGE> 4
thereof respecting the business relationship between the two parties.
(e) To the best knowledge of the Company, Price Waterhouse,
whose report appears in the Company's Annual Report on Form 10-K incorporated
by reference in the Prospectus, are independent public accountants as required
by the Act and the Rules and Regulations.
(f) (i) The Indenture has been duly executed and delivered
and validly authorized by the Company and constitutes the legally binding
obligation of the Company enforceable in accordance with its terms (except as
enforcement thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other laws relating to or affecting
creditors' rights generally, by general equity principles or by an implied
covenant of good faith and fair dealing), (ii) the Notes have been validly
authorized for issuance and sale pursuant to this Agreement and, upon
execution, authentication, delivery and payment therefor as provided in this
Agreement and the Indenture, will be validly issued and outstanding, and will
constitute legally binding obligations of the Company enforceable in accordance
with their terms (except as enforcement of the Notes may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other laws relating to or affecting creditors' rights generally, by general
equity principles or by an implied covenant of good faith and fair dealing) and
entitled to the benefits of the Indenture, and (iii) the Notes and the
Indenture conform in all material respects to the descriptions thereof
contained in the Prospectus.
(g) The Company has been duly incorporated, is validly
existing and is in good standing under the laws of its jurisdiction of
incorporation; each of the Subsidiaries has been duly incorporated, is validly
existing and is in good standing under the laws of their respective
jurisdictions of incorporation (except where the failure to be so incorporated
or to be in good standing would not have a material adverse effect on the
Company and its Subsidiaries taken as a whole); to the best knowledge of the
Company, the Company and each of its Subsidiaries are duly qualified to do
business and in good standing as foreign corporations in each jurisdiction in
which their respective ownership or leasing of property or the conduct of their
respective businesses requires such qualification, and have the corporate power
and authority necessary to own, lease and operate their respective properties
and to conduct the businesses in which they are engaged, except where the
failure to so qualify or to have such power and authority would not have a
material adverse effect on the Company and its Subsidiaries taken as a whole;
and the capital stock of each Subsidiary is owned by the Company, directly or
through Subsidiaries, free and clear of any mortgage, pledge, lien, claim or
encumbrance.
-4-
<PAGE> 5
(h) Except as described in the Prospectus, there is no
material litigation or governmental proceeding pending or, to the knowledge of
the Company, threatened against the Company or any of its Subsidiaries which
would result in any material adverse change in the financial condition or
results of operations of the Company and its Subsidiaries taken as a whole or
which is required to be disclosed in the Registration Statement.
(i) The financial statements filed as part of the
Registration Statement or included or incorporated in any Preliminary
Prospectus or the Prospectus present, and will present as of the applicable
Representation Date, fairly the financial condition and results of operations
of the entities purported to be shown thereby, at the dates and for the periods
indicated, and have been, and will be as of the applicable Representation Date,
prepared in conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods involved; and the supporting
schedules included or incorporated in the Registration Statement present fairly
the information required to be stated therein.
(j) The documents incorporated by reference into any
Preliminary Prospectus or the Prospectus have been, and any documents
subsequently incorporated by reference will be, as of the applicable filing
date, prepared by the Company in conformity with the applicable requirements of
the Act and the Rules and Regulations and the Exchange Act and the rules and
regulations of the Commission thereunder; and such documents have been or will
be as of the applicable Representation Date timely filed as required thereby.
(k) There are no contracts or other documents which are
required to be filed as exhibits to the Registration Statement by the Act or by
the Rules and Regulations, or which were required to be filed as exhibits to
any document incorporated by reference in the Prospectus by the Exchange Act or
the rules and regulations of the Commission thereunder, which have not been
filed as exhibits to the Registration Statement or to such documents, or
incorporated therein by reference as permitted by the Rules and Regulations or
the rules and regulations of the Commission under the Exchange Act, as the case
may be.
(l) All of the authorized, issued and outstanding capital
stock of the Company has been duly authorized and validly issued and is fully
paid and non-assessable and is owned, directly or indirectly, by Great Western.
(m) The Company and each of its Subsidiaries have all
licenses, approvals and consents for the conduct of their respective
businesses, the failure of which to have would have a material adverse effect
on the business of the Company and the Subsidiaries taken as a whole.
-5-
<PAGE> 6
SECTION 2. Solicitations as Agents. (a) On the basis of the
representations and warranties contained herein, but subject to the terms and
conditions herein set forth, each Agent agrees, as a non-exclusive agent of the
Company, to use its best efforts to solicit offers to purchase the Notes upon
the terms and conditions set forth in the Prospectus. No Agent shall otherwise
employ, pay or compensate any other person to solicit offers to purchase the
Notes or to perform any of its functions as agent without the prior written
consent of the Company, which consent shall not be unreasonably withheld.
(b) The Company reserves the right, in its sole discretion,
to suspend solicitation of offers to purchase the Notes commencing at any time
for a period of time or permanently. Upon receipt of at least one business
day's notice from the Company, the Agents will forthwith suspend solicitation
of offers to purchase the Notes from the Company until such time as the Company
has advised the Agents that such solicitation may be resumed. For the purpose
of the foregoing sentence, "business day" shall mean any day which is not a
Saturday or Sunday and which in New York City is not a day on which banking
institutions are generally authorized or obligated by law to close.
(c) Promptly upon the closing of the sale of any Notes sold
by the Company as a result of a solicitation made by an Agent, the Company
agrees to pay such Agent a commission in accordance with the schedule relating
to the Notes set forth in Exhibit A hereto.
(d) The Agents are authorized to solicit offers to purchase
the Notes only in denominations of $100,000 or any amount in excess thereof
which is an integral multiple of $1,000, at a purchase price equal to 100% of
the principal amount thereof or such other purchase price as shall be specified
by the Company. Each Agent shall communicate to the Company, orally or in
writing, each reasonable offer to purchase Notes received by it as an Agent.
The Company shall have the sole right to accept offers to purchase the Notes
and may reject any such offer in whole or in part. Each Agent shall have the
right, in its discretion reasonably exercised, to reject any offer to purchase
the Notes received by it in whole or in part, and any such rejection shall not
be deemed a breach of its agreement contained herein.
(e) Administrative procedures respecting the sale of Notes
hereunder shall be agreed upon from time to time by the Agents and the Company
(the "Procedures"). The Procedures shall include those procedures for the
Notes set forth in Exhibit B hereto. Each Agent and the Company agree to
perform the respective duties and obligations specifically provided to be
performed by each of them herein and in the Procedures.
(f) The documents required to be delivered by Section 5
hereof shall be delivered at the offices of Winthrop, Stimson,
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<PAGE> 7
Putnam & Roberts, One Battery Park Plaza, New York, New York 10004, not later
than 10:00 A.M., New York City time on the date hereof or at such other date or
time as may be mutually agreed upon by the Company and the Agents, which in no
event shall be later than the time at which the Agents initially commence
solicitations of offers to purchase Notes hereunder (the "Closing Date").
SECTION 3. Covenants of the Company. The Company covenants
and agrees with the Agents as follows:
(a) To furnish promptly to the Agents and to their counsel a
signed copy of the Registration Statement as originally filed and each
amendment thereto, and a copy of each Prospectus filed with the Commission,
including all supplements thereto and all documents incorporated therein by
reference and all consents and exhibits filed therewith;
(b) To deliver promptly to the Agents such number of the
following documents as they may reasonably request: (i) conformed copies of
the Registration Statement (excluding exhibits other than the computation of
the ratio of earnings to fixed charges, the Indenture, and this Agreement),
(ii) the Preliminary Prospectus, the Basic Prospectus and the Prospectus and
any supplement thereto and (iii) any documents incorporated by reference in the
Prospectus;
(c) If, during any period in which, in the opinion of counsel
for the Agents, a prospectus relating to the Notes is required to be delivered
under the Act, any event occurs as a result of which the Prospectus would
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if it is necessary
at any time to amend the Prospectus to comply with the Act, to immediately
notify the Agents to suspend solicitation of purchases of the Notes; and, if an
Agent holds Notes which it purchased as principal pursuant to Section 11
hereof, to promptly prepare and file (subject to (e) below) with the Commission
an amendment or supplement which will effect such compliance (provided,
however, that if such amendment or supplement of the Prospectus shall be filed
after the nine-month period commencing on the date on which such Agent
purchased such Notes, such Agent shall pay the costs incurred in connection
with the preparation of such amendment or supplement); and, if the Company
shall decide to amend or supplement the Registration Statement or the
Prospectus to enable the Agents to resume soliciting purchases of Notes to
promptly advise the Agents by telephone (with confirmation in writing) and as
soon as is reasonably practicable, to prepare and file (subject to (e) below)
with the Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance;
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<PAGE> 8
(d) To timely file (subject to (e) below) with the Commission
during any period in which, in the opinion of the Agents' counsel, any
Prospectus is required by law to be delivered in connection with sales of
Notes, all documents (and any amendments to previously filed documents)
required to be filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act;
(e) Prior to filing with the Commission any (i) amendment or
supplement to the Registration Statement, (ii) Prospectus or any amendment or
supplement thereto or (iii) document incorporated by reference in any of the
foregoing or any amendment of or supplement to any such incorporated document,
to furnish a copy thereof to the Agents and counsel for the Agents and to
provide the Agents an opportunity to comment thereon;
(f) To advise the Agents immediately (i) when any
post-effective amendment to the Registration Statement relating to or covering
the Notes becomes effective, (ii) of any request or proposed request by the
Commission for an amendment or supplement to the Registration Statement, to the
Prospectus, to any document incorporated by reference in any of the foregoing
or for any additional information, (iii) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or
any order directed to the Prospectus or any document incorporated therein by
reference or the initiation or threat of any stop order proceeding or of any
challenge to the accuracy or adequacy of any document incorporated by reference
in the Prospectus, (iv) of receipt by the Company of any notification with
respect to the suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threat of any proceeding for that purpose and
(v) of the happening of any event which makes untrue any statement of a
material fact made in the Registration Statement or the Prospectus or which
requires the making of a change in the Registration Statement or the Prospectus
in order to make any statement of a material fact therein not misleading;
(g) If the Commission shall issue a stop order suspending the
effectiveness of the Registration Statement, to make every reasonable effort to
obtain the lifting of that order at the earliest possible time;
(h) To make generally available to its security holders, in
each case as soon as practicable, an earnings statement (in form complying with
the provisions of Section 11(a) of the Act and Rule 158 thereunder and which
need not be certified by independent certified public accountants unless
required by the Act or the Rules and Regulations) covering the period beginning
not later than the first day of the fiscal quarter next following each date
which (i) under Section 11(a) of the Act and the Rules and Regulations is an
"effective date" (as defined in Rule 158) of the Registration Statement for
purposes
-8-
<PAGE> 9
of said Section 11(a), and (ii) is not later than the last sale hereunder;
(i) Until the later of (i) the expiration or termination of
this Agreement and (ii) such time as the Agents may no longer own as principal
any of the Notes purchased hereunder, to furnish to the Agents promptly after
the time the Company makes the same available to others, copies of all public
reports or releases and all reports and financial statements furnished by the
Company to any securities exchange pursuant to requirements of or agreements
with such exchange or to the Commission pursuant to the Exchange Act or any
rule or regulation of the Commission thereunder; and
(j) To endeavor, in cooperation with the Agents, to qualify
the Notes for offering and sale under the applicable securities laws of such
states and other jurisdictions of the United States as the Agents may
reasonably designate, and to maintain such qualifications in effect for as long
as may be reasonably required for the distribution of the Notes. The Company
will file such statements and reports as may be required by the laws of each
jurisdiction in which the Notes have been qualified as above provided.
SECTION 4. Payment of Expenses. (a) The Company will pay
(i) the costs incident to the authorization, issuance, sale and delivery of the
Notes and any taxes payable in that connection, (ii) the costs incident to the
preparation, printing and filing under the Act of the Registration Statement
and any amendments, supplements and exhibits thereto, (iii) the costs incident
to the preparation, printing and filing of any document and any amendments and
exhibits thereto required to be filed by the Company under the Exchange Act,
(iv) the costs of distributing the Registration Statement, as originally filed,
and each amendment and post- effective amendment thereof (including exhibits),
any Preliminary Prospectus, the Basic Prospectus, the Prospectus, any
supplement or amendment to the Prospectus and any documents incorporated by
reference in any of the foregoing documents, (v) the costs and fees in
connection with the listing of the Notes on any securities exchange, (vi) the
costs of any filings with the National Association of Securities Dealers, Inc.,
(vii) the fees and disbursements of counsel to the Company, (viii) the fees
paid to rating agencies in connection with the rating of the Notes, (ix) the
fees and expenses of qualifying the Notes under the securities laws of the
several jurisdictions as provided in Section 3(j) hereof and of preparing and
printing a Blue Sky Memorandum and a memorandum concerning the legality of the
Notes as an investment (including fees and expenses of counsel to the Agents in
connection therewith), (x) the costs of typing this Agreement, and (xi) all
other costs and expenses incident to the performance of the Company's
obligations under this Agreement.
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<PAGE> 10
(b) In addition, the Company shall reimburse the Agents for
their reasonable out-of-pocket expenses (including the reasonable fees and
disbursements of counsel to the Agents) incurred hereunder (other than
out-of-pocket expenses incurred by an Agent in connection with a purchase of
Notes pursuant to Section 11 hereof, which expenses shall be borne by the
Agent).
SECTION 5. Conditions of Obligations. The obligation of the
Agents, as agents of the Company, under this Agreement to solicit offers to
purchase the Notes, as well as the obligation of any Agent to purchase Notes
pursuant to any Purchase Agreement, is subject to the accuracy in all material
respects, on each Representation Date, of the representations and warranties of
the Company contained herein, to the accuracy of the statements of the
Company's officers made in any certificate furnished pursuant to the provisions
hereof, to the performance and observance by the Company in all material
respects of all covenants and agreements contained herein and to the following
additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission, nor any
order directed to any document incorporated by reference in any Prospectus
shall have been initiated or threatened by the Commission.
(b) On the Closing Date, the Agents shall have received the
opinion, dated as of such date, of Stephen F. Adams, General Counsel and
Senior Vice President of the Company, in form and substance reasonably
satisfactory to the Agents and their counsel, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware;
(ii) The Company has the corporate power and authority
necessary to own, lease and operate its properties and conduct its
business as described in the Registration Statement;
(iii) To the best of his knowledge, the Company is duly
qualified to do business and in good standing as a foreign corporation
in each jurisdiction in which its conduct of business or its ownership
or leasing of properties requires such qualification and in which the
failure to be so qualified would have a material adverse effect on the
Company and its Subsidiaries taken as a whole;
(iv) All of the issued and outstanding capital stock of
each Subsidiary has been duly authorized and validly issued and is
fully paid and non-assessable, and,
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<PAGE> 11
except as described in the Registration Statement, all of such capital
stock is owned by the Company, directly or through Subsidiaries, free
and clear of any mortgage, pledge, lien, claim or encumbrance;
(v) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus and the shares
of the Company's issued and outstanding common stock, $1.00 par value,
set forth therein are owned, directly or indirectly, by Great Western;
(vi) Such counsel does not know of any material
litigation or any governmental proceeding pending or threatened
against the Company or any of its Subsidiaries which (individually or
in the aggregate) is or would be required to be disclosed in the
Prospectus which is not disclosed;
(vii) Such counsel does not know of any contracts or
other documents which are required to be filed as exhibits to the
Registration Statement by the Act or by the Rules and Regulations, or
which are required to be filed by the Exchange Act or the rules and
regulations of the Commission thereunder as exhibits to any document
incorporated by reference in the Prospectus, which have not been filed
as exhibits to the Registration Statement or to such document, or
incorporated therein by reference as permitted by the Rules and
Regulations or the rules and regulations of the Commission under the
Exchange Act, as the case may be;
(viii) To the best of such counsel's knowledge, the
Company is not in violation of its corporate charter or by- laws, none
of the Subsidiaries are in violation of their corporate charters or
by-laws, and neither the Company nor any of its Subsidiaries are in
default in the observance or performance of any agreement, indenture or
instrument, the effect of which violation or default would be material
to the Company and its Subsidiaries taken as a whole; and
(ix) To the best of his knowledge, the execution,
delivery and performance of this Agreement and the applicable Purchase
Agreement, if any, and compliance by the Company with the provisions
of the Notes and the Indenture will not conflict with, or result in
the creation or imposition of any lien, charge or encumbrance upon any
of the assets of the Company or any of its Subsidiaries pursuant to
the terms of, or constitute a default in the observance or performance
of, any material agreement, indenture or instrument, or result in a
violation of the corporate charter or by- laws of the Company or any
of its Subsidiaries or any order, statute, rule or regulation of any
court or governmental agency having jurisdiction over the Company, any
of its Subsidiaries or their respective
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<PAGE> 12
properties, the effect of which conflict, lien, charge, encumbrance,
default or violation would be material to the Company and its
Subsidiaries taken as a whole; and no consent, authorization or order
of, or filing or registration with, any court or governmental agency
is required for the execution, delivery and performance by the Company
of this Agreement and the Purchase Agreement, if any, except such as
may be required by the Act, the Trust Indenture Act, the Exchange Act
and state securities laws.
(c) On the Closing Date, the Agents shall have received the
opinion, dated as of such date, of Winthrop, Stimson, Putnam & Roberts, counsel
to the Company, in form and substance reasonably satisfactory to the Agents and
their counsel, to the effect that:
(i) This Agreement and the Purchase Agreement, if
any, have been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding
agreement of the Company, enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other
laws relating to or affecting creditors' rights generally, by general
equity principles or by an implied covenant of good faith and fair
dealing;
(iii) The Notes are in a form contemplated by the
Indenture and approved by the board of directors of the Company and
have been duly authorized by all necessary corporate action and, when
executed and authenticated as specified in the Indenture and delivered
against payment therefor in accordance with this Agreement and any
related Purchase Agreement, will be valid and binding obligations of
the Company, enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other laws
relating to or affecting creditors' rights generally, by general
equity principles or by an implied covenant of good faith and fair
dealing;
(iv) The Notes and the Indenture conform in all material
respects to the statements concerning them in the Registration
Statement and the Prospectus;
(v) The Indenture is qualified under, and complies as to
form in all material respects with, the Trust Indenture Act;
(vi) The Registration Statement is effective under the
Act; no stop order suspending its effectiveness has been
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<PAGE> 13
issued, and, to the knowledge of such counsel, no proceeding for that
purpose is pending or threatened by the Commission; and no order
directed to any document incorporated by reference in the Prospectus
has been issued;
(vii) The Registration Statement, as of the time it became
effective, and the Prospectus, as of its issue date (except that, in
each case, no opinion need be expressed as to the financial statements
and schedules and other financial and statistical data contained or
incorporated by reference therein), complied as to form in all
material respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations of the Commission under
said Acts, and the documents incorporated by reference in the
Prospectus, when filed with the Commission (except that no opinion
need be expressed as to the financial statements and schedules and
other financial and statistical data contained or incorporated by
reference therein), complied as to form in all material respects with
the applicable requirements of the Exchange Act and the rules and
regulations of the Commission thereunder; and (except that no opinion
need be expressed as to the financial statements and schedules and
other financial and statistical data contained or incorporated by
reference therein) nothing has come to the attention of such counsel
to lead them to believe that the Registration Statement, as of the
time it became effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus, as of the Representation Date, contained any untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(d) All corporate proceedings and other legal matters
incident to the authorization and validity of this Agreement and any related
Purchase Agreements, the Notes, the Indenture, the Registration Statement, the
Prospectus and any supplement, amendment or incorporated document, other than
financial statements and other financial data, and all other legal matters and
transactions contemplated by this Agreement and any related Purchase Agreement
shall be reasonably satisfactory in all material respects to Simpson Thacher &
Bartlett, counsel to the Agents, and the Company shall have furnished to such
counsel all documents and information that they may reasonably request to
enable them to pass upon such matters.
(e) (i) Neither the Company nor any of the Subsidiaries shall
be in default (nor shall an event have occurred which, with notice or lapse of
time, or both, would constitute a default) under any provision of any
instrument relating to any outstanding indebtedness of the Company or any of
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<PAGE> 14
the Subsidiaries (except where such default would not have a material adverse
effect on the Company and its Subsidiaries taken as a whole) and (ii) no
material amount of the assets of the Company or of the Company and its
Subsidiaries taken as a whole shall have been pledged or mortgaged, except as
referred to in the Registration Statement and Prospectus, as amended or
supplemented.
(f) On the Closing Date the Agents shall have received a
certificate of the President, the Chief Financial Officer or the Treasurer of
the Company to the effect that:
i) The representations, warranties and agreements of the
Company in Section 1 hereof are true and correct in all material
respects as of the Closing Date; the Company has complied in all
material respects with all its agreements contained herein and
satisfied in all material respects all conditions on its part to be
performed and satisfied at or prior to the date of such certificate
(except that no certificate need be given in respect of the conditions
set forth in Sections 5(d) and 5(g) herein); and the conditions set
forth in Section 5(a) hereof which are to be fulfilled at or prior to
the date of such certificate have been fulfilled in all material
respects; and
(ii) He has reviewed the Registration Statement and the
Prospectus and, in his opinion, (A) the Registration Statement, as of
the time it became effective, did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
(B) the Prospectus does not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, and (C) since the time the Registration
Statement became effective there has not occurred any event required
to be set forth in an amended or supplemented prospectus which has not
been so set forth.
(g) On the Closing Date the Agents shall have received a
letter addressed to them and in form and substance reasonably satisfactory to
them in all respects from Price Waterhouse LLP, dated as of such date, of the
type described in the American Institute of Certified Public Accountants'
Statement on Auditing Standards No. 49 and covering such specified financial
statement items and procedures as the Agents may reasonably request.
(h) No order suspending the sale of the Notes in any
jurisdiction material to the distribution of Notes as contemplated hereby and
designated by the Agents pursuant to Section 3(j) hereof shall have been issued
or in existence, and no proceeding for that purpose shall have been instituted
or, to
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<PAGE> 15
the knowledge of the Agents or the Company, shall be contemplated.
SECTION 6. Additional Covenants of the Company. The Company
covenants and agrees that:
(a) Each acceptance by it of an offer for the purchase of
Notes shall be deemed to be an affirmation that the representations and
warranties of the Company contained in this Agreement and in any certificate
theretofore given to the Agents pursuant hereto are true and correct in all
material respects at the time of such acceptance, and an undertaking that such
representations and warranties will be true and correct in all material
respects at the time of delivery to the purchaser or his agent of the Notes
relating to such acceptance as though made at and as of each such time (and it
is understood that such representations and warranties shall relate to the
Registration Statement and the Prospectus as amended or supplemented to each
such time);
(b) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an amendment or
supplement providing solely for a change in the interest rates or maturities of
the Notes or a change in the principal amount of Notes remaining to be sold or
similar changes) or the Company files with the Commission any document
incorporated by reference into the Prospectus, the Company shall, concurrently
with such amendment, supplement or filing, furnish the Agents with a
certificate of the President, the Chief Financial Officer or the Treasurer of
the Company in form reasonably satisfactory to the Agents to the effect that
the statements contained in the certificate referred to in Section 5(f) hereof
which was last furnished to the Agents are true and correct at the time of such
amendment, supplement or filing, as the case may be, as though made at and as
of such time (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
time) or, in lieu of such certificate, a certificate of the same tenor as the
certificate referred to in said Section 5(f), modified as necessary to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such certificate;
(c) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an amendment or
supplement providing solely for a change in the interest rates or maturities of
the Notes or a change in the principal amount of Notes remaining to be sold or
similar changes) or the Company files with the Commission any document
incorporated by reference into the Prospectus, the Company shall, concurrently
with such amendment, supplement or filing, furnish the Agents and their counsel
with the written opinions of Stephen F. Adams and Winthrop, Stimson, Putnam &
Roberts, dated the date
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<PAGE> 16
of delivery thereof, in form reasonably satisfactory to the Agents, of the same
tenor as the opinions referred to in Sections 5(b) and 5(c) hereof, but
modified, as necessary, to relate to the Registration Statement and the
Prospectus as amended or supplemented to the time of delivery of such opinions
or, in lieu of such opinions, counsel shall furnish the Agents with letters to
the effect that they may rely on such prior opinion to the same extent as
though it were dated the date of such letters authorizing reliance (except that
statements in such last opinions shall be deemed to relate to the Registration
Statement and the Prospectus as amended or supplemented to the time of delivery
of such letters authorizing reliance); and
(d) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented to include additional financial
information or the Company files with the Commission any document incorporated
by reference into the Prospectus which contains additional financial
information, the Company shall cause Price Waterhouse LLP to furnish to the
Agents, concurrently with such amendment, supplement or filing, a letter, dated
the date of delivery of such letter, in form reasonably satisfactory to the
Agents, of the same tenor as the letter referred to in Section 5(g) hereof but
modified to relate to the Registration Statement and Prospectus, as amended and
supplemented to the date of such letter, with such changes as may be necessary
to reflect changes in the financial statements and other information derived
from the accounting records of the Company; provided, however, that if the
Registration Statement or the Prospectus is amended or supplemented solely to
include financial information as of and for a fiscal quarter, Price Waterhouse
LLP may limit the scope of such letter to the unaudited financial statements
included in such amendment or supplement unless there is contained therein any
other accounting, financial or statistical information that, in the reasonable
judgment of the Agents, should be covered by such letter in which event such
letter shall also cover such other information.
SECTION 7. Indemnification and Contribution. (a) The
Company shall indemnify and hold harmless each Agent, each other person, if
any, who at the written request of the Agents and with the consent of the
Company is participating with such Agent in the distribution of the Notes who
is an "underwriter" within the meaning of Section 2(11) of the Act with respect
to the distribution of the Notes (the "Participants") and each person, if any,
who controls any Agent or any Participant within the meaning of Section 15 of
the Act from and against any loss, claim, damage or liability, joint or
several, and any action in respect thereof, to which such Agent or such
Participant or controlling person may become subject, under the Act, the
Exchange Act or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, any untrue statement or alleged untrue
statement of a
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<PAGE> 17
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or arises out of, or is based upon, the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and shall
reimburse each Agent, each Participant and each controlling person for any
legal and other expenses reasonably incurred, as incurred, by such Agent or
such Participant or controlling person in investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action;
provided, however, (i) the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or any Prospectus in reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Agents specifically for
inclusion therein; and (ii) that with respect to any Preliminary Prospectus or
Prospectus, the foregoing indemnification shall not inure to the benefit of any
Agent, any Participant or any person controlling that Agent or Participant on
account of any loss, claim, damage, liability or action arising from the sale
of Notes to any person, if the Agent or Participant that solicited such sale in
fact failed to send or give a copy of the Prospectus provided by the Company in
accordance with Section 3(b) hereof (as such Prospectus may then be amended or
supplemented, in each case exclusive of the documents incorporated therein by
reference) to that person within the time required by the Act; provided,
however, that subparagraph (ii) above shall not apply (X) where such loss,
claim, damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact in such Preliminary Prospectus or Prospectus
and such untrue statement, alleged untrue statement, omission or alleged
omission was not corrected in the Prospectus (or the amendment or supplement
thereto) or (Y) where the failure to deliver such Prospectus (or the amendment
or supplement thereto) resulted from noncompliance by the Company with Section
3(b) hereof. The foregoing indemnity agreement is in addition to any liability
which the Company may otherwise have to any Agent, any Participant or
controlling person.
(b) Each Agent, severally and not jointly, shall indemnify
and hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement and any person who controls the Company
within the meaning of Section 15 of the Act from and against any loss, claim,
damage or liability, joint or several, and any action in respect thereof, to
which the Company or any such director, officer or controlling person may
become subject, under the Act, the Exchange Act or federal or state statutory
law or regulation, at common law or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement of a material fact contained in any
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<PAGE> 18
Preliminary Prospectus, the Registration Statement or the Prospectus, or arises
out of, or is based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Agent specifically for inclusion therein, and
shall reimburse the Company or any such director, officer or controlling person
for any legal and other expenses reasonably incurred, as incurred, by the
Company or any such director, officer or controlling person in investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action. The foregoing indemnity agreement is in addition to any
liability which any Agent otherwise has to the Company or any of its directors,
officers or controlling persons.
(c) Promptly after receipt by an indemnified party under this
Section of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this Section, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section except to the extent that it has been prejudiced in any material
respect by such failure or from any liability which it may have otherwise. If
any such claim or action shall be brought against an indemnified party, and it
shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein, and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall not be
liable to the indemnified party under this Section for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided,
however, any indemnified party shall have the right to employ separate counsel
in any such claim or action and to participate in the defense thereof but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the employment thereof has been specifically authorized by the
indemnifying party in writing, (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel or (iii) the
indemnifying party has failed to assume the defense of such claim or action and
employ counsel reasonably satisfactory to the
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<PAGE> 19
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such claim or action on behalf of such
indemnified party, it being understood, however, that the indemnifying party
shall not, in connection with any one such claim or action or separate but
substantially similar or related claims or actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any
time for all such indemnified parties, which firm shall be designated in
writing by the Agents, if the indemnified parties under this Section consist of
any Agent, any Participant or any of their respective controlling persons, or
by the Company, if the indemnified parties under this Section consist of the
Company or any of its directors, officers or controlling persons. Each
indemnified party, as a condition of the indemnity agreements contained in
Section 7(a) and 7(b) hereof, shall use its best efforts to cooperate with the
indemnifying party in the defense of any such claim or action. The
indemnifying party shall not be liable for any settlement of any such claim or
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be
a final judgment in favor of the plaintiff in any such claim or action, the
indemnifying party agrees to indemnify and hold harmless any indemnified party
from and against any loss or liability by reason of such settlement or
judgment.
(d) If the indemnification provided for in this Section shall
for any reason be unavailable to an indemnified party under Section 7(a) or
7(b) hereof in respect of any loss, claim, damage or liability, or any action
in respect thereof, referred to therein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Company on the one
hand and the Agents and the Participants on the other from the offering of the
Notes, or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of the Company on the one hand and the Agents and the Participants on the other
with respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Agents and the Participants on the other with
respect to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Notes (before deducting expenses)
received by the Company bear to the total commissions received by the Agents
and the Participants with
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<PAGE> 20
respect to such offering. The relative fault shall be determined by reference
to whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Agents, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Agents agree that it would not
be just and equitable if contributions pursuant to this Section 7(d) were to be
determined by pro rata allocation or by any other method of allocation (even if
the Agents and the Participants were treated as one entity for such purpose)
which does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect thereof, referred to
above in this Section 7(d) shall be deemed to include, for purposes of this
Section 7(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7(d), no Agent shall
be required to contribute any amount in excess of the amount by which the total
price at which the Notes sold through such Agent and distributed to the public
were offered to the public exceeds the amount of any damages which such Agent
has otherwise paid or become liable to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
SECTION 8. Status of Each Agent. In soliciting offers to
purchase the Notes from the Company pursuant to this Agreement (other than
offers to purchase pursuant to Section 11 hereof), each Agent is acting solely
as agent for the Company and not as principal. Each Agent will make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Notes from the Company has been solicited by such Agent and
accepted by the Company but such Agent shall have no liability to the Company
in the event any such purchase is not consummated for any reason. If the
Company shall default in its obligation to deliver Notes to a purchaser whose
offer it has accepted, the Company shall hold the Agents harmless against any
loss, claim, or damage arising from or as a result of such default by the
Company, and shall pay to the Agents any commission to which they would have
been entitled in connection with such sale.
SECTION 9. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements of the
Company contained in this Agreement, or contained in certificates of officers
of the Company submitted
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<PAGE> 21
pursuant hereto, shall remain operative and in full force and effect,
regardless of the termination of this Agreement or any investigation made by or
on behalf of any Agent or any person controlling such Agent or by or on behalf
of the Company, and shall survive each delivery of and payment for any of the
Notes.
SECTION 10. Termination. This Agreement may be terminated
(except with respect to offers to purchase Notes which have been accepted by
the Company) for any reason, at any time, by either party hereto upon the
giving of one day's written notice of such termination to the other party
hereto. The provisions of Sections 3(c), 3(h), 3(i), 3(j), 4, 7, 8, 9, 13 and
14 hereof shall survive any such termination.
SECTION 11. Purchases as Principal. From time to time any
Agent may agree with the Company to purchase Notes from the Company as
principal, in which case such purchase shall be made in accordance with the
terms of a separate agreement (a "Purchase Agreement") to be entered into
between such Agent and the Company in the form attached hereto as Exhibit C. A
Purchase Agreement, to the extent set forth therein, may incorporate by
reference specified provisions of this Agreement.
SECTION 12. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to
the Agents shall be directed to them as follows:
notices to the Company shall be directed to it as follows: Aristar, Inc., 9200
Oakdale Avenue, Chatsworth, California 91311 Attention: Bruce F. Antenberg.
SECTION 13. Binding Effect; Benefits. This Agreement shall
be binding upon each Agent, the Company, and their respective successors. This
Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except that (a) the indemnity agreement of the Company contained
in Section 7 hereof shall also be deemed to be for the benefit of any
Participant and the person or persons, if any, who control any Agent or any
Participant within the meaning of Section 15 of the Act, and (b) the indemnity
agreement of the Agents contained in Section 7 hereof shall be deemed to be for
the benefit of directors of the Company, officers of the Company who have
signed the Registration Statement and any person who controls the Company
within the meaning of Section 15 of the Act. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section, any
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<PAGE> 22
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
SECTION 14. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York. This
Agreement may be executed in counterparts and the executed counterparts shall
together constitute a single instrument.
If the foregoing correctly sets forth our agreement, please
indicate your acceptance hereof in the space provided for that purpose below.
Very truly yours,
ARISTAR, INC.
By_________________________
Title
CONFIRMED AND ACCEPTED,
as of the date first
above written:
By________________________
Title
By________________________
Title
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<PAGE> 23
EXHIBIT A
Aristar, Inc.
Medium-Term Notes, Series ____
Schedule of Payments
The Company agrees to pay each Agent a commission equal to the
following percentage of the aggregate dollar equivalent of the principal amount
of Notes:
<TABLE>
<CAPTION>
Term Commission Rate
---- ---------------
<S> <C>
</TABLE>
<PAGE> 24
EXHIBIT B
Administrative Procedures
<PAGE> 25
EXHIBIT C
PURCHASE AGREEMENT
__________, ___
Aristar, Inc.
9200 Oakdale Avenue
Chatsworth, California 91311
Attention: Senior Vice President - Finance
The undersigned agrees to purchase the following principal
amount of the Notes described in the Agency Agreement dated __________, ____
(as it may be supplemented or amended from time to time, the "Agency
Agreement"):
<TABLE>
<S> <C>
Principal Amount: $______________________
Maturity Date: _______________________
Interest Rate: ___%
Discount: ___% of Principal Amount
Aggregate price to be
paid to Company
(in immediately
available funds): $______________________
Settlement Date: _______________________
Other Terms: _______________________
</TABLE>
Unless otherwise defined herein, terms used in this Purchase Agreement with
initial capital letters which are defined in the Agency Agreement are used
herein as so defined.
Our obligation to purchase Notes hereunder is subject to the
continued accuracy in all material respects of your representations and
warranties contained in the Agency Agreement and to your performance and
observance in all material respects of all applicable covenants and agreements
contained therein, including, without limitation, your obligations pursuant to
Section 7 thereof. Our obligation hereunder is subject to the further
conditions that (i) we shall receive (a) the opinions required to be delivered
pursuant to Section 5(b) and 5(c) of the Agency Agreement, (b) the certificate
required to be delivered pursuant to Section 5(f) thereof, and (c) the letter
of Price Waterhouse LLP required to be delivered pursuant to Section 5(g)
thereof, in each case dated as of the above Settlement Date, and (ii) between
the date hereof and the Settlement Date, none of the following events shall
have occurred: (a) trading in securities
<PAGE> 26
generally on the New York Stock Exchange is suspended or minimum prices are
established on that Exchange, or (b) a banking moratorium is declared by either
Federal or New York State authorities, or (c) the United States is or becomes
engaged in hostilities which have resulted in the declaration of a national
emergency, or (d) the rating of any of the Company's debt securities shall have
been lowered by Standard & Poor's Corporation or Moody's Investors Services,
Inc. or either of such rating agencies shall have publicly announced that it
has placed any of the Company's debt securities on what is commonly termed a
"watch list" for possible downgrading, or (e) any material adverse change in
the financial condition or results of operations of the Company and its
Subsidiaries taken as a whole. In the event our obligations hereunder are
terminated because of any of the foregoing, no party shall have any liability
hereunder to the other party hereto, except as provided in Sections 4, 7 and 13
of the Agency Agreement. You agree that we may select Participants to
participate in the distribution of the Notes which are the subject of this
Purchase Agreement without your consent and without giving you prior notice
thereof.
In further consideration of our agreement hereunder, you agree
that between the date hereof and the above Settlement Date, without our prior
written consent, you will not offer or sell, or enter into any agreement to
sell, any debt securities of the Company, other than borrowings under your
revolving credit agreements and lines of credit, the private placement of
securities, issuances of your commercial paper and borrowings from Great
Western Financial Corporation or any affiliate thereof.
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<PAGE> 27
This Agreement shall be governed by and construed in accordance
with the laws of New York.
_______________________
By_____________________
Title:
_______________________
By_____________________
Title:
Accepted: ____________
ARISTAR, INC.
By_____________________
Title:
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<PAGE> 1
Exhibit 4(g)
Draft
3/29/95
===========================================================
ARISTAR, INC.
and
THE BANK OF NEW YORK,
as Trustee
___________________
Senior Debt Securities
___________________
Indenture
___________________
Dated as of __________, 1995
___________________
===========================================================
<PAGE> 2
INDENTURE, dated as of __________, 1995 (the
"Indenture"), between ARISTAR, INC., a corporation
duly organized and existing under the laws of the
State of Delaware (herein called the "Company"),
having its principal office at 8900 Grand Oak Circle,
Tampa, Florida 33637-1050, and THE BANK OF NEW YORK,
as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other obligations for money so borrowed (herein called the
"Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities or of
any series thereof, as follows:
PARAGRAPH A. INCORPORATION BY REFERENCE
Articles I through XIV of the Aristar, Inc. Standard
Multiple-Series Indenture Provisions dated as of __________, 1995 (herein
called the "Standard Provisions"), a copy of which is attached hereto as Annex
"A", are hereby incorporated herein by reference with the same force and effect
as though fully set out herein.
PARAGRAPH B. ADDITIONAL PROVISIONS
1. Section 202 of the Standard Provisions is hereby amended
by deleting the words "[full name of Trustee]" on the sixth line
thereof, and inserting the words "The Bank of New York".
<PAGE> 3
2. The following provision, which constitutes part of this
Indenture, is numbered to conform with the format of the Standard
Provisions.
SECTION 615. Corporate Trust Office. At the date of this
Indenture, the Corporate Trust Office of the Trustee is located at 101 Barclay
Street, Floor 21 West, New York, New York 10286.
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.
ARISTAR, INC.
By______________________________
[SEAL] Vice President
Attest:
___________________________
Secretary
THE BANK OF NEW YORK, as Trustee
By______________________________
Title: Authorized Signatory
[SEAL]
Attest:
____________________________
Title: Authorized Signatory
-2-
<PAGE> 4
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES )
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 Vice President of ARISTAR, INC., 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 NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of _________, 1995, before me personally came
_________________, personally known to me or proved to me on the basis of
satisfactory evidence to be a ______________________ of THE BANK OF NEW YORK,
the association that executed the within Instrument, known to me to be the
person who executed the within Instrument on behalf of the association therein
named, and acknowledged to me that such association executed the same, and
acknowledged to me that such association executed the within Instrument
pursuant to its by-laws or a resolution of its Board of Directors.
WITNESS my hand and official seal.
____________________________
Notary Public
<PAGE> 1
Exhibit 4(h)
Draft
3/29/95
===========================================================
ARISTAR, INC.
and
THE BANK OF NEW YORK,
as Trustee
___________________
Subordinated Debt Securities
___________________
Indenture
___________________
Dated as of __________, 1995
___________________
===========================================================
<PAGE> 2
INDENTURE, dated as of _________, 1995 (the
"Indenture"), between ARISTAR, INC., a corporation
duly organized and existing under the laws of the
State of Delaware (herein called the "Company"),
having its principal office at 8900 Grand Oak Circle,
Tampa, Florida 33637-1050, and THE BANK OF NEW YORK,
as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its
subordinated and unsecured debentures, notes or other obligations for money so
borrowed (herein called the "Securities"), to be issued in one or more series
as in this Indenture provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities or of
any series thereof, as follows:
PARAGRAPH A. INCORPORATION BY REFERENCE
Articles I through XV of the Aristar, Inc. Standard
Multiple-Series Indenture Provisions dated as of __________, 1995 (herein
called the "Standard Provisions"), a copy of which is attached hereto as Annex
"A", are hereby incorporated herein by reference with the same force and effect
as though fully set out herein.
PARAGRAPH B. ADDITIONAL PROVISIONS
1. Section 111 of the Standard Provisions is hereby
amended by inserting ", holders of Senior Debt" after the word
"hereunder" on the fourth line thereof.
<PAGE> 3
2. Section 202 of the Standard Provisions is hereby
amended by deleting the words "[full name of Trustee]" on the sixth
line thereof, and inserting the words "The Bank of New York".
3. Section 501, subsection (a), of the Standard
Provisions is hereby amended by inserting "(whether or not such
payment is prohibited under the provisions of Article XV)" at the end
of such subsection.
4. Section 501, subsection (b), of the Standard
Provisions is hereby amended by inserting "(whether or not such
payment is prohibited under the provisions of Article XV)" at the end
of such subsection.
5. The following provision, which constitutes part of
this Indenture, is numbered to conform with the format of the Standard
Provisions.
SECTION 615. Corporate Trust Office. At the date of this
Indenture, the Corporate Trust Office of the Trustee is located at 101 Barclay
Street, Floor 21 West, New York, New York 10286.
-3-
<PAGE> 4
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.
ARISTAR, INC.
By_______________________
Vice President
[SEAL]
Attest:
____________________
Secretary
THE BANK OF NEW YORK,
as Trustee
By:________________________
Title:
[SEAL]
Attest:
________________________
Title:
-4-
<PAGE> 5
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES)
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 Vice President of ARISTAR, INC., 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 NEW YORK )
) ss.:
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 is ___________________________ of THE BANK OF NEW YORK, 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
<PAGE> 1
Exhibit 4(i)
Draft
3/29/95
================================================================================
ARISTAR, INC.
_____________________________
Standard Multiple-Series
Indenture Provisions
_____________________________
Dated as of _____, 1995
_____________________________
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I
Definitions and Other Provisions
of General Application
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . 8
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . 9
SECTION 104. Acts of Holders; Record Dates . . . . . . . . . . . . . 10
SECTION 105. Notices, etc., to Trustee and Company . . . . . . . . . 12
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . 12
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . . . 13
SECTION 108. Effect of Headings and Table of Contents . . . . . . . 13
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . . 13
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . . . 13
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . . . 14
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . 14
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . 14
SECTION 114. Language of Notices, Etc. . . . . . . . . . . . . . . . 14
SECTION 115. Counterparts . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE II
Security Forms
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . 14
SECTION 202. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . . . . 15
SECTION 203. Securities in Global Form . . . . . . . . . . . . . . . 15
ARTICLE III
The Securities
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . 16
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . 19
SECTION 303. Execution, Authentication, Delivery
and Dating . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . 22
SECTION 305. Registration, Registration of
Transfer and Exchange . . . . . . . . . . . . . . . . . 25
SECTION 306. Mutilated, Destroyed, Lost and Stolen
</TABLE>
--------------------------
* This table of contents shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE> 3
<TABLE>
<S> <C> <C>
Securities . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . 32
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . 33
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . 33
SECTION 311. Manner of Payments in Respect of
Securities . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 312. Compliance with Certain Laws and
Regulations . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE IV
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of
Indenture . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . 36
SECTION 403. Satisfaction, Discharge and
Defeasances of Securities of Any
Series . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 404. Reinstatement . . . . . . . . . . . . . . . . . . . . . 37
SECTION 405. Definitions . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE V
Remedies
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . 39
SECTION 502. Acceleration of Maturity; Rescission
and Annulment . . . . . . . . . . . . . . . . . . . . . 40
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee . . . . . . . . . . . . . . 41
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . 42
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . . . . . . . 43
SECTION 506. Application of Money Collected . . . . . . . . . . . . 43
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . 43
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium and Interest . . . . . . . . 44
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . 44
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . 44
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . 45
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . 45
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . 45
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . 46
</TABLE>
<PAGE> 4
ARTICLE VI
The Trustee
<TABLE>
<S> <C> <C>
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . 46
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . 47
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . 47
SECTION 604. Not Responsible for Recitals or
Issuance of Securities . . . . . . . . . . . . . . . . 49
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . 49
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . 49
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . 49
SECTION 608. Disqualification; Conflicting Interests . . . . . . . . 50
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . 50
SECTION 610. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . 52
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . . . 53
SECTION 613. Preferential Collection of Claims
Against Company . . . . . . . . . . . . . . . . . . . . 53
SECTION 614. Appointment of Authenticating Agent . . . . . . . . . . 53
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company To Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . . . . . . . . 55
SECTION 702. Preservation of Information;
Communications to Holders . . . . . . . . . . . . . . . 56
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . 56
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . 57
ARTICLE VIII
Consolidation, Merger, Conveyance,
Transfer or Lease
SECTION 801. Company May Consolidate, Etc.,
Only on Certain Terms . . . . . . . . . . . . . . . . . 57
SECTION 802. Successor Corporation Substituted . . . . . . . . . . . 58
ARTICLE IX
Supplemental Indentures
SECTION 901. Supplemental Indentures Without
Consent of Holders . . . . . . . . . . . . . . . . . . 58
SECTION 902. Supplemental Indentures With Consent
of Holders . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . 61
</TABLE>
<PAGE> 5
<TABLE>
<S> <C> <C>
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . 61
SECTION 905. Conformity With Trust Indenture Act . . . . . . . . . . 62
SECTION 906. Reference in Securities to
Supplemental Indentures . . . . . . . . . . . . . . . . 62
ARTICLE X
Covenants
SECTION 1001. Payment of Principal, Premium and
Interest . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . 62
SECTION 1003. Money for Securities Payments to be
Held in Trust . . . . . . . . . . . . . . . . . . . . 64
SECTION 1004. Additional Amounts . . . . . . . . . . . . . . . . . . 65
SECTION 1005. Statement as to Compliance . . . . . . . . . . . . . . 66
ARTICLE XI
Redemption of Securities
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . 66
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . 67
SECTION 1103. Selection by Trustee of Securities
to be Redeemed . . . . . . . . . . . . . . . . . . . . 67
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . 68
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . 69
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . 69
SECTION 1107. Security Redeemed in Part . . . . . . . . . . . . . . 70
ARTICLE XII
Sinking Funds
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . 70
SECTION 1202. Satisfaction of Sinking Fund
Payments With Securities . . . . . . . . . . . . . . . 71
SECTION 1203. Redemption of Securities for
Sinking Fund . . . . . . . . . . . . . . . . . . . . . 71
ARTICLE XIII
Meetings of Holders of Securities
SECTION 1301. Purposes for Which Meetings May Be Called . . . . . . 72
SECTION 1302. Call, Notice and Place of Meetings . . . . . . . . . . 72
SECTION 1303. Persons Entitled To Vote at Meetings . . . . . . . . . 72
SECTION 1304. Quorum; Action . . . . . . . . . . . . . . . . . . . . 73
SECTION 1305. Determination of Voting Rights; Conduct
and Adjournment of Meetings . . . . . . . . . . . . . 74
SECTION 1306. Counting Votes and Recording Action
</TABLE>
<PAGE> 6
<TABLE>
<S> <C> <C>
of Meetings . . . . . . . . . . . . . . . . . . . . . 75
ARTICLE XIV
Immunity of Incorporators, Stockholders,
Officers and Directors
SECTION 1401. Immunity of Incorporators,
Stockholders, Officers and Directors. . . . . . . . . 75
ARTICLE XV
Subordination
SECTION 1501. Agreement to Subordinate . . . . . . . . . . . . . . . 76
SECTION 1502. No Payments to Holders of Securities
in Certain Circumstances . . . . . . . . . . . . . . 76
SECTION 1503. Payments by Trustee or Holders of
Securities to Holders of Senior Debt . . . . . . . . 78
SECTION 1504. Subrogation . . . . . . . . . . . . . . . . . . . . . 78
SECTION 1505. Obligation of Company Unconditional . . . . . . . . . 79
SECTION 1506. Payments on Securities Permitted . . . . . . . . . . . 80
SECTION 1507. Effectuation of Subordination by Trustee . . . . . . . 80
SECTION 1508. Knowledge of Trustee . . . . . . . . . . . . . . . . . 80
SECTION 1509. Trustee May Hold Senior Debt . . . . . . . . . . . . . 81
SECTION 1510. Rights of Holders of Senior Debt
Not Impaired . . . . . . . . . . . . . . . . . . . . 81
SECTION 1511. Rights and Obligations Subject to
Power of Court . . . . . . . . . . . . . . . . . . . 81
SECTION 1512. Definitions . . . . . . . . . . . . . . . . . . . . . 81
EXHIBIT A - FORMS OF CERTIFICATION
EXHIBIT A.1 - FORM OF CERTIFICATE TO BE GIVEN
BY PERSON ENTITLED TO RECEIVE BEARER
SECURITY OR TO OBTAIN INTEREST PRIOR TO
AN EXCHANGE DATE
EXHIBIT A.2 - FORM OF CERTIFICATE TO BE GIVEN
BY EURO-CLEAR OR CEDEL S.A. IN
CONNECTION WITH THE EXCHANGE OF A
PORTION OF A TEMPORARY GLOBAL
SECURITY OR TO OBTAIN INTEREST PRIOR
TO AN EXCHANGE DATE
</TABLE>
<PAGE> 7
ARISTAR, INC.
Reconciliation and Tie Between Trust Indenture Act of 1939 and Standard
Multiple-Series Indenture Provisions1/
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C> <C>
Section 310(a)(1) . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . 608
610
Section 311(a) . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . 613
Section 312(a) . . . . . . . . . . . . . 701
702(a)
(b) . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . 702(c)
Section 313(a) . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . 703(a)
(c) . . . . . . . . . . . . . 703(a)
(d) . . . . . . . . . . . . . 703(b)
Section 314(a) . . . . . . . . . . . . . 704
(a)(4) . . . . . . . . . . . . . 1005
(b) . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . 102
Section 315(a) . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . 514
Section 316(a) . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . 502
512
(a)(1)(B) . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . 104(g)
Section 317(a)(1) . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . 107
</TABLE>
____________________
1. This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 8
ARTICLE I
Definitions and Other Provisions
of General Application
SECTION 101. Definitions. For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles, and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
Certain terms, used principally within an Article of this
Indenture, may be defined in that Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
<PAGE> 9
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate
securities of one or more series.
"Authorized Newspaper" means a newspaper of general
circulation in the place of publication, printed in the official language of
the country of publication and customarily published on each Business Day,
whether or not published on Saturdays, Sundays or holidays. Whenever
successive weekly publications in an Authorized Newspaper are authorized or
required hereunder, they may be made (unless otherwise expressly provided
herein) on the same or different days of the week and in the same or different
Authorized Newspapers.
"Bearer Security" means any Security in the form of a bearer
security established pursuant to Section 301 which is payable to bearer and is
not a Registered Security (including without limitation any Security in
temporary or definitive global bearer form).
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment
or place of publication, means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in that Place of
Payment or place of publication are authorized or obligated by or pursuant to
law, regulation or executive order to close or as specified for a series of
Securities pursuant to Section 301 or as specified for any Security in such
Security.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument 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", "Request of the Company", "Company Order"
or "Order of the Company" means a written request or order
-2-
<PAGE> 10
signed in the name of the Company by its Chairman of the Board, its President
or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Controller, an Assistant Controller, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Consolidated Subsidiary" means every Subsidiary which does
not transact any substantial portion of its business or regularly maintain any
substantial portion of its operating assets outside the United States or Canada
other than (i) a Subsidiary acquired or organized after the date of this
Indenture which, prior to the date of acquisition or organization, shall have
been classified by resolution of the Board of Directors or Executive Committee
of the Board of Directors of the Company as an Unconsolidated Subsidiary unless
and until the Board of Directors or Executive Committee of the Board of
Directors of the Company shall by resolution reclassify such Subsidiary as a
Consolidated Subsidiary; and (ii) any Subsidiary of an Unconsolidated
Subsidiary; provided, however, that an Unconsolidated Subsidiary shall not be a
successor, directly or indirectly, to any Consolidated Subsidiary.
"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 administered, which office at the date hereof is that
indicated in Section 615 of this Indenture, except that with respect to the
presentation of Securities (or Coupons, if any, representing an installment of
interest) for payment or for registration of transfer and exchange, such term
shall mean the office or the agency of the Trustee in said city at which at any
particular time its corporate agency business shall be conducted.
"corporation" includes corporations, associations, companies
and business trusts.
"Coupon" or "coupon" means any interest coupon appertaining to
a Bearer Security.
"Debt" means indebtedness of the Company or any Consolidated
Subsidiary representing money borrowed (which term shall include evidences of
indebtedness representing extensions of credit whether or not representing
obligations for money borrowed), except indebtedness owed to the Company by any
Consolidated Subsidiary or owed to any Consolidated Subsidiary by the Company
or any other Consolidated Subsidiary, and shall include indebtedness of any
other person for money borrowed when such indebtedness is guaranteed by the
Company or any Consolidated Subsidiary. The term "Debt" shall be deemed to
include the liability of the Company or any Consolidated Subsidiary in respect
of any investment or similar certificate, except to the extent such
certificates are pledged by purchasers as collateral for, and are offset by,
receivables.
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"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 301 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary" shall mean
or include each Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with respect to the
Securities of any such series shall mean the Depositary with respect to the
Securities of that series.
"Dollar" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"Euro-clear" means the operator of the Euro-clear System.
"Event of Default" has the meaning specified in Section 501.
"Global Security" or "global Security" means a Registered or
Bearer Security evidencing all or part of a series of Securities issued to the
Depositary for such series in accordance with Section 303.
"Holder" or "holder" means, with respect to a Registered
Security, the Person in whose name at the time a particular Registered Security
is registered in the Security Register and, with respect to a Bearer Security
and/or Coupon, the bearer thereof.
"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,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
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"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 Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or any Vice President, and by the
Treasurer, the Controller, the Secretary or any Assistant Treasurer, Assistant
Controller or Assistant Secretary, of the Company, and delivered to the
Trustee. Each such Officers' Certificate shall contain the statements provided
in Section 102, if applicable.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for or an employee of the Company and who shall be acceptable to
the Trustee. Each Opinion of Counsel shall contain the statements provided in
Section 102, if applicable.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding" or "outstanding", when used with respect to
Securities, means, as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities; provided that,
if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
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provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Outstanding Securities or the
number of votes entitled to be cast by each Holder of a Security in respect of
such Security at any such meeting (i) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding for such purposes
shall be the amount of the principal thereof that would be due and payable as
of the date of such determination upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502, and (ii) Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to such Securities
and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest, if any, on any
Securities on behalf of the Company.
"Person" or "person" means any individual, corporation,
partnership, joint venture, association, 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 the principal of (and premium,
if any) and interest, if any, on the Securities of that series are payable as
specified in accordance with Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
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"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security in the form of a
registered security established pursuant to Section 301 which is registered in
the Security Register as to principal and any interest (including without
limitation any Security in temporary or definitive global registered form).
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of any series means the date
specified for that purpose as contemplated by Section 301, which date shall be,
unless otherwise specified pursuant to Section 301, the fifteenth day preceding
such Interest Payment Date, whether or not such day shall be a Business Day.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice chairman of the board of directors, the chairman
or any vice chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust officer,
the controller or any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security (or
Coupon, if any, representing an installment of interest) or any installment of
principal thereof or interest thereon, means the date specified in such
Security (or Coupon) as the fixed date on which the principal of such Security
or such installment of principal or interest is due and payable.
"Subsidiary" means any corporation at least a majority of the
outstanding voting stock of which shall at the time be owned, directly or
indirectly, by the Company or by one or more
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<PAGE> 15
Subsidiaries or by the Company and one or more Subsidiaries. For the purposes
of this definition, "voting stock", as applied to the stock (or the equivalent
thereof, in the case of corporations incorporated outside the continental
limits of the United States) of any corporation, means stock (or such
equivalent) of any class or classes, however designated, having ordinary voting
power for the election of at least a majority of the members of the board of
directors (or other governing body) of such corporation, other than stock (or
such equivalent) having such power only by reason of the happening of a
contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, as in force at the date as of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act of 1939 is amended
after such date, "Trust Indenture Act" means, to the extent required by any
such amendment, the Trust Indenture Act of 1939 as so amended.
"Unconsolidated Subsidiary" means any subsidiary other than a
Consolidated Subsidiary.
"United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions, the
Commonwealth of Puerto Rico and other areas subject to its jurisdiction.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Yield to Maturity", when used with respect to any Original
Issue Discount Security, means the annual yield to maturity, if any, set forth
on the face thereof.
SECTION 102. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee 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, except that in the case
of any such application or request as to which the furnishing of such documents
is
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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, except the certificate of
destruction pursuant to Section 309, shall include
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
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Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders; Record Dates. (a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by 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 agent duly appointed in writing.
If Securities of a series are issuable as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of such series may,
alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article
XIII, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
or so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 601) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section. The record of
any meeting of Holders of Securities shall be proved in the manner provided in
Section 1306.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may be proved
by the production of such Bearer Securities or by certificate executed by any
trust company, bank, banker or other depositary, wherever situated, showing
that at the date therein mentioned such Person had on deposit with such
depositary, or
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<PAGE> 18
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of
any Bearer Security continues until (1) another certificate or affidavit
bearing a later date issued in respect of the same Bearer Security is produced,
(2) such Bearer Security is produced to the Trustee by some other Person, (3)
such Bearer Security is surrendered in exchange for a Registered Security or
(4) such Bearer Security is no longer Outstanding.
(d) The fact and date of execution of any such instrument or
writing pursuant to clause (c) above, the authority of the Person executing the
same and the principal amount and serial numbers of Bearer Securities held by
the Person so executing such instrument or writing and the date of holding the
same may also be proved in any other manner which the Trustee deems sufficient;
and the Trustee may in any instance require further proof with respect to any
of the matters referred to in this clause.
(e) The principal amount and serial numbers of Registered
Securities held by any Person and the date of holding the same shall be proved
by the Security Register.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of a Holder shall bind every future Holder of the
same Security and/or Coupon and the Holder of every Security and/or Coupon
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security and/or Coupon.
(g) If the Company shall solicit from the Holders any
request, demand, authorization, direction, notice, consent, waiver or other
Act, or in the circumstances permitted by the Trust Indenture Act, the Company
may, at its option, by or pursuant to a Board Resolution, fix in advance a
record date for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. Where the Company does not fix a
record date prior to the first solicitation of a Holder made by any Person in
respect of any such Act, the record date for any such Act shall be the 30th day
(or, if later, the date of the most recent list of Holders required to be
provided pursuant to Section 701) prior to such first solicitation. With
regard to any record date, any request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such record
date, but only the Holders 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
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<PAGE> 19
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
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.
SECTION 105. Notices, etc., to Trustee and Company. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
made, given, furnished or filed in writing to or with the Trustee at
its Corporate Trust Office and unless otherwise herein expressly
provided, any such document shall be deemed to be sufficiently made,
given, furnished or filed upon its receipt by a Responsible Officer of
the Trustee, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this instrument
or at any other address previously furnished in writing to the Trustee
by the Company, Attention: Secretary.
SECTION 106. Notice to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event:
(i) if any of the Securities affected by such event are
Registered Securities, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at
his address as it appears in the Security Register, within the time
prescribed for the giving of such notice, and
(ii) if any of the Securities affected by such event are
Bearer Securities, such notice shall be sufficiently given (unless
otherwise herein expressly provided or unless otherwise specified in
such Securities) if published once in an Authorized Newspaper in New
York City and London and mailed to such Persons whose names and
addresses were previously filed with the Trustee, within the time
prescribed for the giving of such notice.
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 by mail, then such notification as
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the Company shall direct the Trustee in writing to give shall constitute a
sufficient notification for every purpose hereunder. In any case where notice
to Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders.
In case by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause
it shall be impracticable to publish any notice to Holders of Bearer Securities
as provided above, then such notification to Holders of Bearer Securities as
the Company shall direct the Trustee in writing to give shall constitute
sufficient notice to such Holders for every purpose hereunder. Neither the
failure to give notice by publication to Holders of Bearer Securities as
provided above, nor any defect in any notice so published, shall affect the
sufficiency of any notice to Holders of Registered Securities given as provided
herein.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders of Securities shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act. This
Indenture is subject to, and shall be governed by, the provisions of the Trust
Indenture Act that are required to be a part of this Indenture. If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under such Act to be a part of and govern this
Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that
may be so modified or excluded, the latter provision shall be deemed to apply
to this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 110. Separability Clause. In case any provision in
this Indenture or in the Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
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SECTION 111. Benefits of Indenture. Nothing in this
Indenture or in the Securities or Coupons, express or implied, shall give to
any Person, other than the parties hereto and their successors hereunder and
the Holders, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 112. Governing Law. This Indenture and the
Securities and Coupons shall be governed by and construed in accordance with
the laws of the State of New York, without regard to conflicts of laws
provisions thereof.
SECTION 113. Legal Holidays. Except as otherwise specified
as contemplated by Section 301, in any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security shall not be a Business Day
at any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities or Coupons, if any) payment of interest or
principal (and premium, if any) need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption
Date or Stated Maturity, as the case may be, to the next succeeding Business
Day at such Place of Payment.
SECTION 114. Language of Notices, Etc. Any request, demand,
authorization, direction, notice, consent or waiver required or permitted under
this Indenture shall be in the English language, except that any published
notice may be in an official language of the country of publication.
SECTION 115. Counterparts. This Indenture may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
ARTICLE II
Security Forms
SECTION 201. Forms Generally. The Securities of each series
and the Coupons, if any, to be attached thereto shall be in substantially the
forms as shall be established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities
and Coupons,
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<PAGE> 22
if any, as evidenced by their execution of the Securities and Coupons, if any.
If the form of Securities of any series is established by or by action taken
pursuant to a Board Resolution, a copy of the Board Resolution together with an
appropriate record of any action taken pursuant thereto, which Board Resolution
or record of such action shall have attached thereto a true and correct copy of
the forms of Security approved by or pursuant to such Board Resolution, shall
be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities and Coupons, if any, shall be
printed, typed, lithographed or engraved on steel engraved borders or may be
produced in any other manner, all as determined by the officers executing such
Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons, if any.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated and
issued under the within-mentioned Indenture.
[full name of Trustee],
as Trustee
By _______________________________
Authorized [Officer] [Signatory]
SECTION 203. Securities in Global Form. If Securities of a
series are issuable in global form, as specified as contemplated by Section
301, then, notwithstanding clause (8) of Section 301 and the provisions of
Section 302, such Security shall represent such of the Outstanding Securities
of such series as shall be specified therein and may provide that it shall
represent the aggregate amount of Outstanding Securities from time to time
endorsed thereon and that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any increase
or decrease in the amount, of Outstanding Securities represented thereby shall
be made by the Trustee in such manner and upon instructions given by such
Person or Persons as shall be specified therein or in the Company Order to be
delivered to the Trustee pursuant to Section 303 or Section 304. Subject to
the provisions of Section 303 and, if applicable, Section 304, the Trustee
shall deliver and redeliver any Security in definitive global bearer form in
the manner and upon written instructions given by the Person or Persons
specified therein or in the applicable Company Order. If
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a Company Order pursuant to Section 303 or 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of the eighth paragraph of
Section 303 shall apply to any Security represented by a Security in global
form if such Security was never issued and sold by the Company and the Company
delivers to the Trustee the Security in global form together with written
instructions (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) with regard to the reduction in the
principal amount of Securities represented thereby, together with the written
statement contemplated by the last sentence of the eighth paragraph of Section
303.
Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of principal of and
any premium and any interest on any Security in definitive global form shall be
made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company and the Trustee shall treat a Person as the Holder of such
principal amount of Outstanding Securities represented by a definitive global
Security as shall be specified in a written statement of the Holder of such
definitive global Security or, in the case of a definitive global Security in
bearer form, of Euro-clear or CEDEL, S.A. which is produced to the Trustee by
such Person.
ARTICLE III
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 from time to time in one or more
series. There shall be established in or pursuant to a Board Resolution, and
set forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
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(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 304, 305,
306, 906 or 1107 and except for any Securities which, pursuant to
Section 303, are deemed never to have been authenticated and delivered
hereunder);
(3) the date or dates on which the principal of (and premium,
if any, on) any of the Securities of the series are payable or the
method of determination thereof and the amount or amounts of any
installment of principal payable on such dates;
(4) the rate or rates, or the method of determination
thereof, at which any of the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be
payable and the Regular Record Date for the interest payable on any
Registered Securities on any Interest Payment Date;
(5) the place or places where the principal of (and premium,
if any) and interest, if any, on any of the Securities and Coupons, if
any, of the series shall be payable and the office or agency for the
Securities of the series maintained by the Company pursuant to Section
1002;
(6) the period or periods within which, the price or prices
at which and the terms and conditions upon which any of the Securities
and any Coupons of the series may be redeemed, in whole or in part, at
the option of the Company;
(7) the terms of any sinking fund and the obligation, if any,
of the Company to redeem or purchase Securities of the series pursuant
to any sinking fund or analogous provisions or at the option of a
Holder thereof and the period or periods within which, the price or
prices at which and the terms and conditions upon which Securities of
the series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(8) if other than denominations of $1,000, if registered, and
$5,000, if bearer, and any integral multiple of the applicable
denominations, the denominations in which the Securities of the series
shall be issuable;
(9) if other than the principal amount thereof, the portion
of the principal amount of any of the Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502;
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(10) the application, if any, of Section 403, or such other
means of satisfaction and discharge as may be specified for the
Securities and Coupons, if any, for a series;
(11) any deletions or modifications of or additions to the
Events of Default set forth in Section 501 or covenants of the Company
set forth in Article X pertaining to the Securities of the series;
(12) the forms of the Securities and Coupons, if any, of the
series;
(13) whether the Securities of the series are to be issued as
Registered Securities or Bearer Securities (with or without Coupons),
or a combination thereof, whether Bearer Securities may be exchanged
for Registered Securities of the series and whether Registered
Securities may be exchanged for Bearer Securities of the series (if
permitted by applicable laws and regulations) and the circumstances
under which and the place or places where any such exchanges, if
permitted, may be made; and whether any Securities of the series are
to be issuable initially in temporary global form and whether any
Securities of the series are to be issuable in definitive global form
with or without Coupons and, if so, whether beneficial owners of
interests in any such definitive global Security may exchange such
interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which and
the place or places where any such exchanges may occur, if other than
in the manner provided in Section 305;
(14) if the Securities and Coupons, if any, of the series are
to be issued upon the exercise of warrants, the time, manner and place
for Securities to be authenticated and delivered;
(15) whether and under what circumstances and with what
procedures and documentation the Company will pay additional amounts
on any of the Securities and Coupons, if any, of the series to any
Holder who is not a United States person (including a definition of
such term), in respect of any tax, assessment or other governmental
charge withheld or deducted from a payment thereon and, if so, whether
the Company will have the option to redeem such Securities rather than
pay additional amounts (and the terms of any such option);
(16) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person in
whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for
such interest, the
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manner in which, or the Person to whom, any interest on any Bearer
Security of the series shall be payable, if otherwise than upon
presentation and surrender of the Coupons appertaining thereto as they
severally mature and the extent to which, or the manner in which, any
interest payable on a temporary global Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 304;
(17) whether the Securities of the series shall be issued in
whole or in part in the form of one or more Global Securities and, in
such case, the Depositary for such Global Security or Securities; and
(18) any other terms of any of the Securities of the series
(which terms shall not be inconsistent with the provisions of this
Indenture).
All Securities of any one series and the Coupons appertaining
to any Bearer Securities of such series shall be substantially identical except
as to denomination, the rate or rates of interest, if any, and the Maturity and
except as may otherwise be provided in or pursuant to the Board Resolution
referred to above and (subject to Section 303) set forth in the Officers'
Certificate referred to above or in any such indenture supplemental hereto.
The Securities shall be payable as to principal and interest,
if any, and any premium payable upon the redemption thereof in Dollars. At the
option of the Company, interest on the Registered Securities of any series that
bears interest may be paid by mailing a check to the address of any Holder as
such address shall appear in the Securities Register.
If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action together with such Board Resolution shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the Securities of such series.
SECTION 302. Denominations. The Securities of each series shall
be issuable in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000, if registered, and $5,000, if bearer, and in any
integral multiple of the applicable denominations. Securities of each series
shall be numbered, lettered or otherwise distinguished in such manner or in
accordance with such plan as the officers of the Company executing the same may
determine with the approval of the Trustee.
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SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed in the name and on behalf of the Company by
manual or facsimile signatures of its Chairman of the Board, its President or
any of its Vice Presidents, under its corporate seal reproduced thereon attested
by the manual or facsimile signature of its Secretary or one of its Assistant
Secretaries. Any Coupons shall be executed on behalf of the Company by the
manual or facsimile signature of any such officer of the Company.
Securities and Coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series,
together with any Coupons appertaining thereto, executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
in connection with the sale of a Bearer Security during the "restricted period"
as defined in United States Treasury regulation section 1.163-5(c)(2)(i)(D)(7),
no Bearer Security shall be mailed or otherwise delivered to any location in the
United States; and provided, further, that a definitive Bearer Security sold
during the restricted period may be delivered only outside the United States and
only if the Person entitled to receive such definitive Bearer Security shall
have furnished a certificate in the form set forth in Exhibit A.1 to this
Indenture, dated no earlier than 15 days prior to the earlier of the date on
which such definitive Bearer Security is delivered and the date on which any
temporary bearer Global Security first becomes exchangeable for such definitive
Bearer Security in accordance with the terms of such temporary Security and this
Indenture. Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant Coupons for
interest then matured have been detached and canceled.
If all the Securities of a series are not to be originally
issued at one time, and if the Board Resolution, Officers' Certificate 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 the determination of the terms of particular Securities of
such series such as interest rate or rates (or the method in which such rate or
rates are to be determined), if any, Stated Maturity, date of issuance and date
from which interest, if any, shall accrue.
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If the forms or terms of the Securities of the series and any
related Coupons have been established by or pursuant to one or more Board
Resolutions as permitted by Sections 201 and 301, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Opinion of
Counsel stating:
(a) if the forms of such Securities and any Coupons have been
established by or pursuant to a Board Resolution as permitted by
Section 201, that such forms have been established in conformity with
the provisions of this Indenture; and
(b) if the terms of such Securities and any Coupons have been
established by or pursuant to a Board Resolution as permitted by
Section 301, that such terms have been established in conformity with
the provisions of this Indenture.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 301 or the Company Order and
Opinion of Counsel otherwise required pursuant to such preceding paragraph at or
prior to the time of authentication of each Security of such series if such
documents are delivered at or prior to the authentication upon original issuance
of the first Security of such series to be issued.
Each Registered Security shall be dated the date of its
authentication; and each Bearer Security and any Bearer Security in global form
shall be dated as of the date of original issuance of the first Security of such
series to be issued.
No Security or Coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form provided
for herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been duly authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section 309
together with a written statement (which need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel) stating that such Security has
never been issued and sold by the Company, for all purposes of this Indenture
such Security shall be deemed never to have
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been authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
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 a
Global Security, then 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 the Global Security that (i) shall represent and shall
be denominated in an aggregate amount equal to the aggregate principal amount of
Outstanding Securities of such series to be represented by the Global Security,
(ii) shall be registered, if in registered form, in the name of the Depositary
for such Global Security or the nominee of such Depositary, (iii) shall be
delivered by the Trustee to such Depositary or pursuant to such Depositary's
instruction, and (iv) shall bear a legend substantially to the following effect:
"Unless and until this Security is exchanged in whole or in part for Securities
in definitive form, this Security may not be transferred except as a whole by
the Depositary to a nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary" or to such other effect as the Depositary and the Trustee may agree.
Each Depositary designated pursuant to Section 301 for a Global
Security in registered form must, at the time of its designation and at all
times while it serves as Depositary, be a clearing agency registered under the
Securities Exchange Act of 1934 and any other applicable statute or regulation.
The Trustee shall have no responsibility to determine if the Depositary is so
registered.
SECTION 304. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued, (i) in registered form or (ii) in bearer form,
with one or more Coupons or without Coupons, and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced conclusively by their
execution of such Securities. Such temporary Securities may be (in the case of
Registered Securities) and shall be (in the case of Bearer Securities) in global
form.
Except in the case of temporary Global Securities in bearer
form (which are exchangeable for definitive Bearer Securities in accordance with
the provisions of the following paragraphs), if temporary Securities of any
series are issued,
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the Company will cause definitive Securities of that series to be prepared
without unreasonable delay. After the preparation of definitive Securities of
such series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company maintained pursuant to
Section 1002 in a Place of Payment for such series for the purpose of exchanges
of Securities of such series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series (accompanied
by any unmatured Coupons appertaining thereto) the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like aggregate
principal amount of definitive Securities of the same series and of like tenor
and authorized denominations; provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security (including a definitive
Bearer Security in global form) shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section 303.
If temporary Global Securities in bearer form of any series are
issued, any such temporary global Securities in bearer form shall, unless
otherwise provided therein, be delivered to the London office of a Depositary
(the "Common Depositary"), for the benefit of Euro-clear and CEDEL, S.A., for
credit to the respective accounts of the beneficial owners of such Securities
(or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
global Security in bearer form (the "Exchange Date"), the Company shall deliver
to the Trustee definitive Securities, in aggregate principal amount equal to the
principal amount of such temporary global Security in bearer form, executed by
the Company. On or after the Exchange Date, such temporary global Security in
bearer form shall be surrendered by the Common Depositary to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such temporary global
Security in bearer form, an equal aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such temporary global Security in bearer form to be exchanged.
The definitive Securities to be delivered in exchange for any such temporary
global Security in bearer form shall be in bearer form, registered form,
definitive global form (registered or bearer), or a combination thereof, as
specified as contemplated by Section 301, and, if a combination thereof is so
specified, as requested by the beneficial owner thereof; provided, however,
that, unless otherwise specified in such temporary global Security in bearer
form, upon such
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presentation by the Common Depositary, such temporary global Security in bearer
form shall be accompanied by a certificate dated the Exchange Date or a
subsequent date and signed by Euro-clear as to the portion of such temporary
global Security in bearer form held for its account then to be exchanged and a
certificate dated the Exchange Date or a subsequent date and signed by CEDEL,
S.A. as to the portion of such temporary global Security in bearer form held for
its account then to be exchanged, each in the form set forth in Exhibit A.2 to
this Indenture; and provided, further, that definitive Bearer Securities shall
be delivered in exchange for a portion of a temporary global Security in bearer
form only in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security in
bearer form, the interest of a beneficial owner of Securities of a series in a
temporary global Security in bearer form shall be exchanged for definitive
Securities of the same series and of like tenor following the Exchange Date when
the beneficial owner instructs Euro-clear or CEDEL, S.A., as the case may be, to
request such exchange on his behalf and delivers to Euro-clear or CEDEL, S.A.,
as the case may be, a certificate in the form set forth in Exhibit A.1 of this
Indenture, dated no earlier than 15 days prior to the Exchange Date, copies of
which certificate shall be available from the offices of Euro-clear, CEDEL,
S.A., the Trustee, any Authenticating Agent appointed for such series of
Securities and any Paying Agent appointed for such series of Securities. Unless
otherwise specified in such temporary global Security in bearer form, any such
exchange shall be made free of charge to the beneficial owners of such temporary
global Security in bearer form, except that a Person receiving definitive
Securities must bear the cost of insurance, postage, transportation and the like
in the event that such Person does not take delivery of such definitive
Securities in person at the offices of Euro-clear or CEDEL, S.A. The definitive
Securities in bearer form to be delivered in exchange for any portion of a
temporary global Security in bearer form shall be delivered only outside the
United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security in bearer form on an Interest Payment Date for Securities of such
series occurring prior to the applicable Exchange Date shall be payable to
Euro-clear and CEDEL, S.A. on such Interest Payment Date upon delivery by
Euro-clear and CEDEL S.A. to the Trustee of a certificate or certificates in the
form set forth in Exhibit A.2 to this Indenture, for credit without further
interest on or after such Interest Payment Date to the respective accounts of
the Persons who are the beneficial owners of such temporary global Security in
bearer form (or to such
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other accounts as they may direct) on such Interest Payment Date and who have
each delivered to Euro-clear or CEDEL, S.A., as the case may be, a certificate
in the form set forth in Exhibit A.1 to this Indenture. Any interest so received
by Euro-clear and CEDEL, S.A. and not paid as herein provided shall be returned
to the Trustee immediately prior to the expiration of two years after such
Interest Payment Date in order to be repaid to the Company in accordance with
Section 1003.
SECTION 305. Registration, Registration of Transfer and
Exchange. The Company shall cause to be kept at an office or agency to be
maintained by the Company in accordance with Section 1002 a register (being the
combined register of the Security Registrar and all transfer agents designated
pursuant to Section 1002 for the purpose of registration of transfer of
Securities and sometimes collectively referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Registered Securities and the registration
of transfers of Registered Securities. The Trustee is hereby appointed "Security
Registrar" for the purpose of registering Registered Securities and transfers of
Registered Securities as herein provided.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency of the Company maintained
pursuant to Section 1002 for such purpose in a Place of Payment for such series,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Registered
Securities of the same series of any authorized denominations and of a like
aggregate principal amount and tenor.
At the option of the Holder, Registered Securities of any
series (except a Global Security representing all or a portion of the Securities
of such series) may be exchanged for other Registered Securities of the same
series of any authorized denominations and of a like aggregate principal amount
and tenor, upon surrender of the Registered Securities to be exchanged at any
such office or agency. Whenever any Registered Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Securities which the Holder making the exchange is
entitled to receive. Bearer Securities may not be issued in exchange for
Registered Securities.
The Company may establish pursuant to Section 301 that, at the
option of the Holder (subject to Section 303), Bearer Securities of any series
may be exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured Coupons and all matured Coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured Coupon
or Coupons or
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matured Coupon or Coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
in an amount equal to the face amount of such missing Coupon or Coupons, or the
surrender of such missing Coupon or Coupons may be waived by the Company and the
Trustee if there is furnished to each of them such security or indemnity as each
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such missing
Coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; provided, however,
that, except as otherwise provided in Section 1002, interest represented by
Coupons shall be payable only upon presentation and surrender of those Coupons
at an office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same series and
like tenor after the close of Business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the Coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such Coupon when due in accordance with the provisions of this
Indenture.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any definitive global Bearer Security shall be
exchangeable only as provided in this paragraph. If the beneficial owners of
interests in a definitive global Bearer Security are entitled to exchange such
interests for Securities of such series and of like tenor and principal amount
of another authorized form and denomination, as specified as contemplated by
Section 301, then without unnecessary delay but in any event not later than the
earliest date on which such interests may be so exchanged, the Company shall
deliver to the Trustee definitive Securities in aggregate principal amount equal
to the principal amount of such definitive global Bearer Security, executed by
the Company. On or after the earliest date on which such interests may be so
exchanged, such definitive global Bearer Security shall be surrendered by the
Common Depositary or such other depositary or Common Depositary as shall be
specified in the Company Order with respect thereto to the
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Trustee, as the Company's agent for such purpose, to be exchanged, in whole or
from time to time in part, for definitive Securities without charge and the
Trustee shall authenticate and deliver, in exchange for each portion of such
definitive global Bearer Security, an equal aggregate principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor as the portion of such definitive global Bearer Security to be exchanged
which, unless the Securities of the series are not issuable both as Bearer
Securities and as Registered Securities, as specified as contemplated by Section
301, shall be in the form of Bearer Securities or Registered Securities or any
combination thereof, as shall be specified by the beneficial owner thereof;
provided, however, that no such exchanges may occur during a period beginning at
the opening of business 15 days before any selection of Securities of that
series to be redeemed and ending on the relevant Redemption Date; and provided,
further, that no Bearer Security delivered in exchange for a portion of a
definitive global Security shall be mailed or otherwise delivered to any
location in the United States. If a Registered Security is issued in exchange
for any portion of a definitive global Bearer Security after the close of
business at the office or agency where such exchange occurs on (i) any Regular
Record Date and before the opening of business at such office or agency on the
relevant Interest Payment Date, or (ii) any Special Record Date and before the
opening of business at such office or agency on the related proposed date for
payment of Defaulted Interest, interest or Defaulted Interest, as the case may
be, will not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of such Registered Security, but will 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
definitive global Bearer Security is 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 entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company or
the Trustee or any transfer agent) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar or any transfer agent duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any
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registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 906 or 1107 not involving any transfer.
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 any selection of Securities of that
series to be redeemed and ending at the close of business on (A) if Securities
of the series are issuable only as Registered Securities, the day of the mailing
of the relevant notice of redemption and (B) if Securities of the series are
issuable as Bearer Securities, the day of the first publication of the relevant
notice of redemption or, if Securities of the series are also issuable as
Registered Securities and there is no publication, the mailing of the relevant
notice of redemption, or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption, in whole or in part, except the
unredeemed portion of any Security being redeemed in part, or (iii) to exchange
any Bearer Security so selected for redemption except that such a Bearer
Security may be exchanged for a Registered Security of that series and like
tenor; provided, that such Registered Security shall be simultaneously
surrendered for redemption.
If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary for the
Securities of such series shall no longer be eligible under Section 303, the
Company shall appoint a successor Depositary with respect to the Securities of
such series. If a successor Depositary for the Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company's election pursuant to
Section 301 shall no longer be effective with respect to the Securities of such
series and the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver, Securities of such series in definitive
form in an aggregate principal amount equal to the principal amount of the
Global Security representing such series in exchange for such Global Security.
If specified by the Company pursuant to Section 301 with
respect to a series of Securities, the Company may at any time and in its sole
discretion determine that the Securities of any series issued in the form of one
or more Global Securities shall no longer be represented by such Global Security
or Securities. In such event the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver Securities of such
series in definitive form and in an aggregate principal amount equal to the
principal
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amount of the Global Security or Securities representing such series in exchange
for such Global Security or Securities.
If specified by the Company pursuant to Section 301 with
respect to a series of Securities, the Depositary for such series of Securities
may surrender a Global Security for such series of Securities in exchange in
whole or in part for Securities of such series in definitive form on such terms
as are acceptable to the Company and such Depositary; provided, however, that no
portion of a Global Security in registered form may be surrendered in exchange
for Securities in bearer form. Thereupon, the Company shall execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, shall authenticate and deliver, without
charge to the Holders,
(i) to each Person specified by such Depositary a new
Security or Securities of the series of any authorized denomination as
requested by such Person in aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the Global Security;
and
(ii) to such Depositary a new Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal
amount of Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee will authenticate and
deliver Securities (a) in definitive registered form in authorized
denominations, if the Securities of such series are issuable as Registered
Securities, (b) in definitive bearer form in authorized denominations, with
coupons attached, if the Securities of such series are issuable as Bearer
Securities or (c) as either Registered or Bearer Securities, if the Securities
of such series are issuable in either form; provided, however, that a Bearer
Security may not be delivered in exchange for a Registered Security, and
provided, further, that a definitive Bearer Security shall be delivered in
exchange for a temporary Global Security in bearer form only in compliance with
the conditions set forth in Section 303 and provided, further, that delivery of
a Bearer Security shall be made only outside the United States.
Upon the exchange of a Global Security for Securities in
definitive form, such Global Security shall be canceled by the Trustee.
Registered Securities issued in exchange for a Global Security pursuant to this
Section shall be registered in such names and in such authorized denominations
as the Depositary for such Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee in
writing. The Trustee shall deliver such Registered Securities to the persons in
whose names such Securities are so registered.
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Notwithstanding any other provisions of this Section to the
contrary, unless and until a Global Security is exchanged in whole for
Securities in definitive form, a Global Security representing all or a portion
of the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or Security with a mutilated Coupon appertaining to it
is surrendered to the Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same series
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding with Coupons corresponding to the Coupons, if any,
appertaining to the surrendered Security.
If there shall be delivered to the Company and the Trustee (i)
evidence to each of their satisfaction of the destruction, loss or theft of any
Security or Coupon and (ii) such security or indemnity as may be required by
each of them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
or Coupon has been acquired by a bona fide purchaser, the Company shall execute
and the Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security or in exchange for the Security to which a destroyed,
lost or stolen Coupon appertains (upon surrender to the Trustee of such Security
with all appurtenant Coupons not destroyed, lost or stolen), a new Security of
the same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding, with Coupons corresponding to the Coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen Coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security
or Coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security or Coupon, pay such Security
or Coupon; provided, however, that principal of (and premium, if any) and any
interest on Bearer Securities shall, except as otherwise provided in Section
1002, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
Coupons appertaining thereto.
Upon the issuance of any new Security or Coupon under this
Section, the Company may require the payment of a sum
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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 or Coupon of any series issued pursuant to
this Section in lieu of any mutilated, destroyed, lost or stolen Security or
Coupon shall constitute an original additional contractual obligation of the
Company, whether or not the mutilated, 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
or Coupons 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 or
Coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 with respect to any
series of Securities, interest on any Registered Security which is payable, and
is punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security of such series
and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special
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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, first-class postage prepaid, to each Holder of
Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 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, and, subject as aforesaid, each such Security shall be so dated, or
have attached thereto such Coupons, that neither gain nor loss in interest shall
result from such transfer, exchange or substitution.
SECTION 308. Persons Deemed Owners. Prior to due presentment of
a Registered Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Registered Security for
the purpose of receiving payment of principal of (and premium, if any) and
(subject to Sections 305 and 307) any interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Title to any Bearer Security and any Coupons appertaining
thereto shall pass by delivery. The Company, the
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Trustee and any agent of the Company or the Trustee may treat the Holder of any
Bearer Security and the Holder of any Coupon as the absolute owner of such
Security or Coupon for the purpose of receiving payment thereof or on account
thereof and for all other purposes whatsoever, whether or not such Security or
Coupon be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global
Security, nothing herein shall prevent the Company, the Trustee, or any agent of
the Company or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by any Depositary, as a Holder, with
respect to such Global Security or impair, as between such Depositary and owners
of beneficial interests in such Global Security, the operation of customary
practices governing the exercise of the rights of such Depositary (or its
nominee) as Holder of such Global Security. Neither the Company, the Trustee,
nor any agent of the Company or the Trustee, will have any responsibility or
liability for any aspects of the records relating to or payments made on account
of beneficial ownership interests in a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
SECTION 309. Cancellation. All Securities and Coupons
surrendered for payment, redemption, registration of transfer or exchange or for
credit against any sinking fund payment shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee. All such Securities and
Coupons so delivered, and all such Securities and Coupons so surrendered to the
Trustee, shall be promptly canceled by the Trustee. All Bearer Securities and
unmatured Coupons held by the Trustee pending such cancellation shall be deemed
to be delivered for cancellation for all purposes of this Indenture and the
Securities. The Company may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation
any Securities previously authenticated hereunder which the Company has not
issued and sold, and all Securities so delivered shall be promptly 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 this Indenture. All canceled Securities and Coupons held by the
Trustee shall be disposed of in a manner selected by the Trustee and the Trustee
shall deliver a certificate evidencing such destruction to the Company.
SECTION 310. Computation of Interest. Except as otherwise
specified as contemplated by Section 301 for Securities of any series, interest
on the Securities of each series shall be computed on the basis of a 360-day
year of twelve 30-day months.
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SECTION 311. Manner of Payments in Respect of Securities. The
provisions of this Section shall apply to the Securities of any series unless
otherwise provided as contemplated by Section 301.
(a) The following payment provisions shall apply to any
Registered Security of any series:
(1) Except as provided in subparagraph (a)(2) below,
payment of principal of and premium, if any, on such Registered
Security will be made at the Place of Payment by delivery of a
check on the payment date or dates against surrender of such
Registered Security, and any interest on any Registered
Security will be paid at the Place of Payment by mailing a
check by first class mail to the Person entitled thereto at the
address of such Person appearing on the Security Register.
(2) Payment of the principal of, premium, if any, and
interest, if any, on such Security may also, subject to
applicable laws and regulations, be made at such other place or
places as may be designated by the Company by any appropriate
method.
(b) Payment of the principal of and premium, if any, and
interest, if any, on any Bearer Security will be made, except as
provided in Section 304 with respect to temporary global Securities,
unless otherwise specified pursuant to Section 301 and/or Section
901(8), at such place or places outside the United States as may be
designated by the Company pursuant to any applicable laws or
regulations by any appropriate method on the payment date therefor
against surrender of the Bearer Security, in the case of payment of
principal and premium, if any, or the relevant Coupon, in the case of
payment of interest, if any, to a Paying Agent designated for such
series pursuant to Section 1002.
(c) Not later than 10 Business Days (with respect to any Place
of Payment) prior to each payment date, the Trustee shall deliver to
the Company a copy of its record of the respective aggregate amounts of
principal of, premium, if any, and interest, if any, on the Securities
to be made on such payment date, specifying the amounts so payable in
respect of Registered Securities and Bearer Securities.
SECTION 312. Compliance with Certain Laws and Regulations. If
any Bearer Securities are to be issued in any series of Securities, the Company
will use reasonable efforts to provide for arrangements and procedures designed
pursuant to then applicable laws and regulations, if any, to ensure that such
Bearer Securities are sold or resold, exchanged, transferred and paid only in
compliance with such laws and regulations and
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without adverse consequences to the Company, the Holders and the Trustee.
ARTICLE IV
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture. This
Indenture shall upon Company Request cease to be of further effect (except as to
any surviving rights of (as applicable) registration of transfer or exchange of
Securities and Coupons, if any, of any series herein expressly provided for),
and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture when
(1) either
(A) all Securities and Coupons theretofore
authenticated and delivered (other than (i) Securities and
Coupons which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306 and (ii)
Securities and Coupons for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been delivered to
the Trustee for cancellation; or
(B) all such Securities and Coupons 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) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (B)(i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount sufficient to
pay and discharge the entire indebtedness on such Securities
and Coupons not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest,
if any, to the date of such deposit (in the case of Securities
and Coupons which have become due and
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payable) or to the Stated Maturity or Redemption Date, as the case may
be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 607, the
obligations of the Company to any Authenticating Agent under Section 614 and, if
money shall have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under Section 402 and
the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money. Subject to the
provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Sections 401 and 403 shall be held in trust and applied by
it, in accordance with the provisions of the Securities and Coupons, if any, and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and any interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
SECTION 403. Satisfaction, Discharge and Defeasances of
Securities of Any Series. If this Section is specified, as contemplated by
Section 301, to be applicable to Securities and Coupons, if any, of any series,
the Company will be deemed to have been Discharged (as defined below) from its
obligations with respect to Securities and Coupons, if any, of such series when
(1) either
(A) with respect to all Outstanding Securities and
Coupons of such series, the Company has deposited or caused to
be deposited with the Trustee as a trust fund specifically
pledged as security for, and dedicated solely to, the benefit
of the Holders of the Securities and Coupons, if any, of such
series, (i) money in an amount as will, or (ii) U.S. Government
Obligations (as defined below) as will, together with the
predetermined and certain income to accrue thereon without
consideration of any reinvestment thereof, or (iii) a
combination of (i) and (ii) as will (in a written opinion with
respect to (ii) or (iii) of independent
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public accountants delivered to the Trustee), be sufficient to
pay and discharge the entire indebtedness on all Outstanding
Securities and Coupons of such series for principal (and
premium, if any) and interest, if any, to the Stated Maturity
or any Redemption Date as contemplated by the last paragraph of
this Section 403, as the case may be; or
(B) with respect to all Outstanding Securities and
Coupons of such series, the Company has properly fulfilled such
other means of satisfaction and discharge as is specified by
Section 301 to be applicable to the Securities and Coupons, if
any, of such series; and
(2) the Company has paid or caused to be paid all other sums
payable with respect to the Outstanding Securities and Coupons, if
any, of such series;
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of the entire indebtedness on all Outstanding Securities and
Coupons, if any, of any such series have been complied with; and
(4) with respect to subsection 1(A) above, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that
Holders of the Securities and Coupons, if any, of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of the Company's exercise of its option under this Section 403
and will be subject to Federal income tax in the same amount, in the
same manner and at the same times as would have been the case if such
option had not been exercised.
Any deposits with the Trustee referred to in Section 403(1)(A)
above shall be irrevocable and shall be made under the terms of an escrow trust
agreement in form and substance satisfactory to the Trustee. If any Outstanding
Securities and Coupons, if any, of such series are to be redeemed prior to their
Stated Maturity, whether pursuant to any mandatory redemption provisions or in
accordance with any mandatory sinking fund requirement, the applicable escrow
trust agreement will provide therefor and the Company will make arrangements for
the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company.
SECTION 404. Reinstatement. If the Trustee is unable to apply
any money or U.S. Government Obligations in accordance with Section 401 or 403
by reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and
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the Securities and Coupons, if any, of such series shall be revived and
reinstated as though no deposit had occurred pursuant to Section 401 or 403
until such time as the Trustee is permitted to apply all such money or U.S.
Governmental Obligations in accordance with Section 401 or 403; provided,
however, that if the Company has made any payment of interest on or principal of
(and premium, if any, on) any Securities and Coupons, if any, of such series
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such series of Securities and Coupons, if any,
to receive such payment from the money or U.S. Government Obligations held by
the Trustee.
SECTION 405. Definitions. The following terms, as used in
this Article IV, shall have the following meanings:
"Discharged" means that the Company will be deemed to have paid
and discharged the entire indebtedness represented by, and obligations
under, the Securities and Coupons, if any, of the series as to which
Section 403 is specified as applicable as aforesaid and to have
satisfied all the obligations under this Indenture relating to the
Securities and Coupons, if any, of such series (and the Trustee, at the
expense of the Company, will execute proper instruments acknowledging
the same), except (A) the rights of Holders thereof to receive, from
the trust fund described in Section 403(1)(A) above, payment of the
principal of (and premium, if any) and the interest, if any, on such
Securities and Coupons, if any, when such payments are due, (B) the
Company's obligations with respect to such Securities and Coupons, if
any, under Sections 305 and 306 (insofar as applicable to Securities of
such series), 402, 1002 and 1003 (last paragraph only) and the
Company's obligations to the Trustee under Sections 607 and 610 and (C)
the rights, powers, trusts, duties and immunities of the Trustee
hereunder, will survive such discharge.
"U.S. 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 timely payment of
which is unconditionally guaranteed as a full faith and credit
obligation of the United States of America, which, in either case under
clauses (i) or (ii), are not callable or redeemable at the option of
the issuer thereof, and will also include a depository receipt issued
by a bank or trust company as custodian with respect to any such U.S.
Government Obligation or a specified payment of interest on or
principal of any such U.S. 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
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amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the U.S. Government Obligation
or the specific payment of interest on or principal of the U.S.
Government Obligation evidenced by such depository receipt.
ARTICLE V
Remedies
SECTION 501. Events of Default. "Event of Default", wherever
used herein with respect to Securities of any series, means any one of the
following events, unless it is either inapplicable to a particular series or it
is specifically deleted or modified in or pursuant to the supplemental indenture
or Board Resolution establishing such series of Securities or in the form of
Security for such series:
(a) the failure of the Company to pay any installment of
interest on any of the Securities of that series, when and as the same
shall become payable, which failure shall have continued unremedied for
a period of 30 days;
(b) the failure of the Company to pay the principal of (and
premium, if any, on) any of the Securities of that series, when and as
the same shall become payable, whether at Stated Maturity as therein
expressed, by call for redemption, pursuant to any sinking fund, by
declaration as authorized by this Indenture or otherwise;
(c) the failure of the Company to observe and perform any other
of the covenants or agreements on the part of the Company contained in
this Indenture (other then a covenant or agreement included in this
Indenture solely for the benefit of a series of Securities other than
that series), which failure shall have continued unremedied for a
period of 90 days after written notice shall have been given, by
registered or certified mail, to the Company by the Trustee, or shall
have been given to the Company and the Trustee by the Holders of 25% or
more in principal amount of the Securities of that series then
Outstanding, specifying such failure and requiring the Company to
remedy the same and stating that such notice is a "Notice of Default"
hereunder;
(d) the entry of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Company in an
involuntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy,
insolvency or other similar law, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or other similar official)
of the Company or for any substantial part of its property,
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or ordering the winding up or liquidation of its affairs and the
continuance of any such decree or order unstayed and in effect for a
period of 90 consecutive days;
(e) the commencement by the Company of a voluntary case under
the Federal bankruptcy laws, as now constituted or hereafter amended,
or any other applicable Federal or State bankruptcy, insolvency or
other similar law, or the consent by it to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the Company or for any
substantial part of its property, or the making by it of any assignment
for the benefit of its creditors, or the admission by the Company in
writing of its inability to pay its debts generally as such debts
become due;
(f) an event of default, as defined in any mortgage, indenture
(including this Indenture), trust agreement or other instrument
securing, evidencing or providing for any Debt of the Company as a
result of which Debt of the Company in excess of $25,000,000 aggregate
principal amount shall be or become due and payable prior to the date
on which the same would otherwise become due and payable (except that
such amount shall be $20,000,000 in respect of a default on Securities
of another series) and such acceleration shall not have been annulled
or rescinded within 30 days of notice of such acceleration to the
Company; provided, however, that, if such event of default with respect
to such other series of Securities or under such indenture or
instrument, as the case may be, shall be remedied or cured by the
Company or waived by the holders of such other series of Securities or
the holders of such indebtedness, as the case may be, pursuant to this
Indenture or such indenture or instrument, as the case may be, then
unless the Maturity of the Securities of such series shall have been
accelerated as provided herein, the Event of Default hereunder by
reason thereof shall be deemed likewise to have been thereupon
remedied, cured or waived without further action upon the part of
either the Trustee or the holders of such series; or
(g) any other Event of Default provided with respect to the
Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
the Securities of that series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that series)
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 Holders), and
upon any such
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declaration such principal amount (or specified amount) shall become immediately
due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and interest thereon at the
rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities or, in the case of
Original Issue Discount Securities, the Securities' Yield to
Maturity, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if the Company shall fail for
a period of 30 days to pay any installment of interest on the Securities of any
series or shall fail to pay the principal of (and premium, if any, on) any of
the Securities of any series when and as the same shall become due and payable,
whether at Stated Maturity, or by call for redemption, pursuant to any sinking
fund, by declaration as authorized by this
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Indenture, or otherwise, the Company will, upon demand of the Trustee, pay to
it, for the benefit of the Holders of such Securities and Coupons, if any, the
whole amount then due and payable on such Securities and Coupons, if any, for
principal (and premium, if any) and interest and, to the extent that payment of
such interest shall be legally enforceable, interest on any overdue principal
(and premium, if any) and on any overdue interest, at the rate or rates
prescribed therefor in such Securities (or, in the case of Original Issue
Discount Securities, the Securities' Yield to Maturity) and Coupons, if any,
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities and Coupons,
if any, of any series occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of any
judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In particular, the
Trustee shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
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SECTION 505. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities and Coupons, if any, 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 and
Coupons, if any, in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any) or
interest, if any, upon presentation of the Securities and the notation thereon
of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: to the payment of all amounts due the Trustee under
Section 607;
SECOND: to the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest, if any, on the
Securities in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, if any, respectively; and
THIRD: the balance, if any, ratably to the Person or Persons
entitled thereto.
SECTION 507. Limitation on Suits. No Holder of any Security
of any series shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
of trustee, or for any other remedy hereunder, unless
(1) an Event of Default with respect to Securities of such
series shall have occurred and be continuing and such Holder has
previously given written notice to the Trustee of such continuing Event
of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
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(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
the right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture (including without limitation the provisions of Section 512)
to affect, disturb or prejudice the rights of any other of such Holders, or to
obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Security or any Coupon shall have the right, which
is absolute and unconditional, to receive payment of the principal of (and
premium, if any, on) and (subject to Section 307) any interest on such Security
or Coupon on the Stated Maturity or Maturities expressed in such Security (or,
in the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies. If the Trustee
or any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative. Except as provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities in the last paragraph of Section 306, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and
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in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or omission
of the Trustee or of any Holder of any Securities to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or any acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such series,
provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to the Holders not taking part in such
direction, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any series
may on behalf of the Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its consequences, except a
default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article IX 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 with
respect to such series, and any Event of Default with respect to such series
arising therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such
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waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 514. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; provided that
neither this Section nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such an assessment in any
suit instituted by the Company.
ARTICLE VI
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 provision of this Indenture are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit
the effect of Subsection (a) of this Section;
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(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in principal
amount of the Outstanding Securities of any series, determined as
provided in Sections 101, 104 and 512, 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. If a default occurs hereunder
with respect to Securities of any series, the Trustee shall give the Holders of
Securities of such series notice of such default actually known to the Trustee
as and to the extent provided by the Trust Indenture Act; provided, however,
that in the case of any default of the character specified in Section 501(c)
with respect to Securities of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof and if such default is
corrected within such period, the Trustee may conclude, consistent with the
Trust Indenture Act, that notice of such a default need not be provided to such
Holders of Securities. 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. Subject to the
provisions of 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,
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other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors 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 negligence or 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 this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(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, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may, in good faith, deem reasonable in the circumstances, and, if
the Trustee shall determine to make such further inquiry or
investigation, any further evidence which may be requested by the
Trustee pursuant to the provisions of this paragraph shall be furnished
by the Company; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
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SECTION 604. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. Neither the Trustee nor any Authenticating
Agent shall be accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 605. May Hold Securities. The Trustee, any Paying
Agent, any Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities
or warrants to purchase Securities and, subject to Sections 608 and 613, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust. Money held by the Trustee
or any Paying Agent in trust hereunder need not be segregated from other funds
except to the extent required by law. The Trustee or any Paying Agent shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement. The Company
agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) 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 any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, damage, claim, liability or expense incurred
without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or
trusts 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.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien
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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,
premium, if any, or interest, if any, on particular Securities.
SECTION 608. Disqualification; Conflicting Interests. If the
Trustee has or shall acquire any conflicting interest within the meaning of the
Trust Indenture Act, the Trustee shall comply with the relevant provisions
thereof.
SECTION 609. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If such Person publishes reports
of condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee 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 in accordance with the
applicable requirements of 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 resigning Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect
to the Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
608 after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security for at least six months, or
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(2) the Trustee for a series shall cease to be
eligible under Section 609 and shall fail to resign after written
request therefor by the Company or by any Holder of Securities of such
series, or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public officer
shall take charge or control of the Trustee or its property or affairs
for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Trustee
for any cause, with respect to the Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and each successor Trustee or Trustees shall comply with the applicable
requirements of Section 611. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of
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any series and each appointment of a successor Trustee with respect to the
Securities of any series by giving notice of such event to all Holders of
Securities of such series as provided by Section 106. Each notice shall
include the name of the successor Trustee with respect to the Securities of
such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor. (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 of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(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 co-trustees of the same trust and that such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee; and upon the
execution and delivery of such supplemental indenture, the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of
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the retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(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 paragraph (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 into which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against
Company. If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities or the Coupons, if any), the Trustee
shall be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent. The
Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon original issue or
upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee
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or the Trustee's certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation having a
combined capital and surplus of not less than the equivalent of $50,000,000 and
subject to supervision or examination by Federal or State authority or the
equivalent foreign authority, in the case of an Authenticating Agent who is not
organized and doing business under the laws of the United States of America,
any State thereof or the District of Columbia. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section, such 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 such 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 such Authenticating
Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first- class mail, postage prepaid, to all Holders of
Registered Securities, if any, of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
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The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated and
issued under the within-mentioned Indenture.
[full name of Trustee]
__________________________________
As Trustee
By________________________________
As Authenticating Agent
By________________________________
Authorized [Officer] [Signatory]
If all of the Securities of a 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
or other place where the Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested by the
Company in writing (which writing need not comply with Section 102 and need not
be accompanied by an Opinion of Counsel), shall appoint in accordance with this
Section an Authenticating Agent (which may be an Affiliate of the Company if
eligible to be appointed as an Authenticating Agent hereunder) having an office
in such Place of Payment or other place designated by the Company with respect
to such series of Securities.
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company To Furnish Trustee Names and Addresses
of Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than January 15 and July 15 in
each year (commencing with the first January 15 or
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July 15 after the first issuance of Securities pursuant to this
Indenture), a list, in such form as the Trustee may reasonably
require, of all information in the possession or control of the
Company or any Paying Agent as to the names and addresses of the
Holders of each series of Registered Securities as of the preceding
January 1 or July 1, as the case may be,
(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, and
(c) such information concerning the Holders of Bearer
Securities which is known to the Company; provided, however, that the
Company shall have no obligation to investigate any matter relating to
any Holder of a Bearer Security or a Coupon.
SECTION 702. Preservation of Information; Communications to
Holders. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, shall
be as provided by the Trust Indenture Act.
(c) Every Holder of Securities or Coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders in accordance with Section 312 of the Trust
Indenture Act, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under Section 312(b) of the
Trust Indenture Act.
SECTION 703. Reports by Trustee. (a) On or before July 15
of each year commencing with the first July 15 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit to the
Holders of Securities, in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, a brief report if required by Section 313(a)
of the Trust Indenture Act, dated as of a date no more than 60 nor
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less than 45 days prior thereto. The Trustee also shall comply with Section
313(b) of the Trust Indenture Act and shall transmit to Holders, in the manner
and to the extent provided is said Section 313(c), such other reports, if any,
as may be required pursuant to the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 704. Reports by Company. The Company shall file with
the Trustee and the Commission, and transmit to Holders, such information,
documents and reports, and such summaries thereof, as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided pursuant to
such Act; provided that any such information, documents or reports required to
be filed with the Commission pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 shall be filed with the Trustee within 15 days after the
same is so required to be filed with the Commission.
ARTICLE VIII
Consolidation, Merger, Conveyance,
Transfer or Lease
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms. The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and the Company shall not permit
any Person to consolidate with or merge into the Company, unless:
(1) in case the Company shall consolidate with or merge into
another corporation or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the corporation
formed by such consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer, or which leases,
the properties and assets of the Company substantially as an entirety
shall be a corporation organized and existing under the laws of the
United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest, if any, on all the
Outstanding Securities of all series and the performance of every
covenant of this Indenture on the part of the Company to be performed
or observed;
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(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing; and
(3) if a supplemental indenture is required in connection
with such transaction, the Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 802. Successor Corporation Substituted. Upon any
consolidation by the Company with or merger by the Company into any other
corporation or any conveyance, transfer or lease of the properties and assets
of the Company substantially as an entirety in accordance with Section 801, the
successor corporation formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor corporation had
been named as the Company herein, and thereafter, the predecessor corporation
shall be relieved of the performance and observance of all obligations and
covenants under this Indenture and the Securities (and any Coupons appertaining
thereto), including but not limited to the obligation to make payment of the
principal of (and premium, if any) and interest, if any, on all the Outstanding
Securities of all series (and any Coupons appertaining thereto), and, in the
event of such conveyance, transfer or lease, may be liquidated and dissolved.
ARTICLE IX
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders, 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:
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities;
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less
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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;
(3) to add any additional Events of Default with respect to
all or any series of the Securities (and, if such Event of Default is
applicable to less than all series of Securities specifying the series
to which such Event of Default is applicable);
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to facilitate the
issuance of Securities in bearer form, registrable or not registrable
as to principal, and with or without interest coupons; to change or
eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Securities, to permit Bearer Securities
to be issued in exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of other
authorized denominations; provided that any such addition or change
shall not adversely affect the interests of the Holders of Securities
of any series or any related Coupons in any material respect;
(5) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
adversely affected by such change in or elimination of such provision;
(6) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301;
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b);
(8) if allowed under applicable laws and regulations, to
permit payment in the United States of principal, premium or interest
on Bearer Securities or Coupons, if any;
(9) to provide for the issuance of uncertificated Securities
of one or more series in addition to or in place of certificated
Securities; or
(10) 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
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provisions with respect to matters or questions arising under this
Indenture; provided such other provisions as may be made shall not
adversely affect the interests of the Holders of Securities of any
series in any material respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount
of the Outstanding Securities of all series affected by such supplemental
indenture (acting as one class), by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by or pursuant to a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any
instalment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or reduce the amount of
the principal of an Original Issue Discount Security that would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change any Place of Payment where, or the
coin or currency in which, any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date),
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture,
(3) change any obligation of the Company, with respect to
Outstanding Securities of a series, to maintain an office or agency in
the places and for the purposes specified in Section 1002 for such
series, or
(4) modify any of the provisions of this Section or Section
513 except to increase any such percentage or to provide with respect
to any particular series the right to condition the effectiveness of
any supplemental indenture as to that series on the consent of the
Holders of a specified percentage of the aggregate principal amount of
Outstanding
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Securities of such series (which provision may be made pursuant to
Section 301 without the consent of any Holder) or to provide that
certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this
Section, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(7).
For purposes of this Section 902, if the Securities of any
series are issuable upon the exercise of warrants, each holder of an
unexercised and unexpired warrant with respect to such series shall be deemed
to be a Holder of Outstanding Securities of such series in the amount issuable
upon the exercise of such warrant. For such purposes, the ownership of any
such warrant shall be determined by the Company in a manner consistent with
customary commercial practices. The Trustee for such series shall be entitled
to rely on an Officers' Certificate as to the principal amount of Securities of
such series in respect of which consents shall have been executed by holders of
such warrants.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive (in
addition to the opinion which the Trustee is entitled to receive pursuant to
Section 303), 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, immunities or liabilities under this
Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article,
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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 905. Conformity With Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
Covenants
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Securities
and Coupons, if any, that it will duly and punctually pay the principal of (and
premium, if any, on) each of the Securities and Coupons, if any, of that
series, and the interest, if any, which shall have accrued thereon, in
accordance with the terms of the Securities and Coupons, if any, of such series
and this Indenture.
SECTION 1002. Maintenance of Office or Agency. If Securities
of a series are issuable only as Registered Securities, until all the
Securities of each such series shall have been paid or payment thereof provided
for, the Company will maintain in each Place of Payment for such series an
office or agency where Securities of that series may be presented or
surrendered for payment, where Securities of that series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served. If Securities of a series are issuable as Bearer Securities, until
all the Securities of each such series shall have been paid or payment thereof
provided for, the Company will maintain (A) in The City of New York, an office
or agency where any Registered Securities of that series may be presented or
surrendered for payment, where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of
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that series may be surrendered for exchange, where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served and where Bearer Securities of that series and related Coupons
may be presented or surrendered for payment in the circumstances described in
this paragraph (and not otherwise), (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Securities of that series
and related Coupons may be presented and surrendered for payment (including
payment of any additional amounts payable on Securities of that series pursuant
to Section 1004); provided, however, that if the Securities of that series are
listed on The International Stock Exchange of the United Kingdom and the
Republic of Ireland Limited, the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company will maintain a Paying Agent for the Securities of that
series in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Securities of that series are
listed on such exchange, and (C) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series located in Europe, an office or
agency where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered
for exchange and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served. The Company
will give prompt written notice to the Trustee and the Holders of the location,
and any change in the location, of any such office or agency. If at any time
the Company shall fail to maintain any such required office or agency in
respect of any series of Securities or shall fail to furnish the Trustee with
the address thereof, such presentations and surrenders of Securities of that
series may be made and notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of that
series and the related Coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Bearer Securities of
that series pursuant to Section 1004) at the London office of the Trustee (or
an agent with a London office appointed by the Trustee and acceptable to the
Company), and the Company hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands. Presentation of
Coupons for payment or other demands for payment of Bearer Securities must be
made outside the United States, and no payment of principal, premium or
interest on Bearer Securities shall be made at any office or agency of the
Company in the United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank located in the
United States; provided, however, that payment of principal of and any premium
and interest on any Bearer Security (including any additional amounts payable
on Securities of such series pursuant to Section 1004) shall be made at the
office of the Company's Paying Agent in The City of New York, if (but only if)
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(i) despite the appointment of Paying Agents outside the United States, payment
of the full amount of such principal, premium, interest or additional amounts,
as the case may be, at the offices of all such Paying Agents maintained for the
purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions, (ii)
such payment is then permitted by applicable laws and (iii) in appointing a
Paying Agent in The City of New York, the Company would not suffer any fiscal
or other sanction under applicable laws as a result of such appointment or of
any payment being made through such Paying Agent.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company 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 will give
prompt written notice to the Trustee and the Holders of any such designation or
rescission and of any change in the location of any such other office or
agency.
SECTION 1003. Money for Securities Payments to be Held in
Trust. If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest, if any, on any of the
Securities of that series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium, if
any) or interest, if any, so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly notify
the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, at or prior to the opening of business on
each due date of the principal of (and premium, if any) or interest, if any, on
any Securities of that series, deposit with a Paying Agent a sum sufficient to
pay the principal (and premium, if any) or interest, if any, so becoming due,
such sum to be held as provided by the Trust Indenture Act, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of
its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will (i) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and
(ii) during the continuance of any default by the Company (or any other obligor
upon the Securities of that series) in the making
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of any payment in respect of the Securities of that series, and upon the
written request of the Trustee, forthwith pay to the Trustee all sums held in
trust by such Paying Agent for payment in respect of the Securities of that
series.
Anything in this Section 1003 to the contrary notwithstanding,
the Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest, if any, on any Security of any series and
remaining unclaimed for two years after such principal (and premium, if any) or
interest has become due and payable shall be paid to the Company, or (if then
held by the Company) shall be discharged from such trust; and the Holder of
such Security and Coupons, if any, shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, shall at the expense and at the written direction of the
Company cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in The City of New York, notice that such money remains unclaimed and that,
after a date specified herein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 1004. Additional Amounts. If the Securities of a
series provide for the payment of additional amounts, the Company will pay to
the Holder of any Security of such series or any Coupon appertaining thereto
additional amounts as provided and subject to the conditions set forth therein.
Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of or any premium or interest on, or in respect of, any Security
of any series or payment of any related Coupon or the net proceeds received on
the sale or exchange of any Security of any series, such mention shall be
deemed to include mention of the payment of additional amounts provided for in
this Section to the extent that, in such context, additional amounts are, were
or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of additional amounts (if
applicable) in any provisions hereof shall not be
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construed as excluding additional amounts in those provisions hereof where such
express mention is not made.
If the Securities of a series provide for the payment of
additional amounts, at least 10 days prior to the first Interest Payment Date
with respect to that series of Securities (or if the Securities of that series
will 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, with an Officers'
Certificate instructing the Trustee and such Paying Agent or Paying Agents
whether such payment of principal of and any premium or interest on the
Securities of that series shall be made to Holders of Securities of that series
or any related Coupons who are United States Aliens (as defined in the
Securities) without withholding for or on account of any tax, assessment or
other governmental charge described in the Securities of that series. If any
such withholding shall be required, then such Officers' Certificate shall
specify by country the amount, if any, required to be withheld on such payments
to such Holders of Securities or Coupons and the Company will pay to the
Trustee or such Paying Agent the additional amounts required by this Section.
The Company covenants to indemnify the Trustee and any Paying Agent for, and to
hold them harmless against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on an Officers'
Certificate furnished pursuant to this Section.
SECTION 1005. Statement as to Compliance. On or before March
31 of each year following the date hereof, the Company shall deliver to the
Trustee a certificate of the principal executive officer, principal financial
officer or principal accounting officer of the Company, stating whether or not
to the best knowledge of such officer the Company is in default in the
performance and observance of any of the terms, provisions and conditions of
this Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and, if the Company shall be in default, specifying all
such defaults and the nature and status thereof of which such officer may have
knowledge.
ARTICLE XI
Redemption of Securities
SECTION 1101. Applicability of Article. Securities
(including any Coupons) of any series which are redeemable before
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their Stated Maturity shall be redeemable in accordance with their terms and
(except as otherwise specified as contemplated by Section 301 for Securities
(including any Coupons) of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities (including any Coupons) shall
be evidenced by a Board Resolution or by an action taken pursuant to a Board
Resolution. In case of any redemption at the election of the Company of less
than all the Securities (including any Coupons) of any series, the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities
(including any Coupons) of such series to be redeemed. In the case of any
redemption of Securities (including any Coupons) prior to the expiration of any
restriction on such redemption provided in the terms of such Securities
(including any Coupons) or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing compliance with
such restriction.
SECTION 1103. Selection by Trustee of Securities to be
Redeemed. If less than all the Securities (including any Coupons) of any
series are to be redeemed, the particular Securities (including any Coupons) to
be redeemed shall be selected not more than 60 days prior to the Redemption
Date by the Trustee, from the Outstanding Securities (including any Coupons) of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities (including any Coupons) of that series or any integral multiple
thereof) of the principal amount of Securities (including any Coupons) of such
series of a denomination larger than the minimum authorized denomination for
Securities (including any Coupons) of that series.
In any case where Securities (including any Coupons) of such
series are registered in the same name, the Trustee in its discretion may treat
the aggregate principal amount so registered as if it were represented by one
Security of such series. If the Securities of any series (including any
Coupons) to be redeemed consist of Securities having different Stated
Maturities or different rates of interest (or methods of computing interest),
then the Company may, in the written notice delivered to the Trustee pursuant
to Section 1102, direct that the Securities (including any Coupons) of such
series to be redeemed shall be selected from among groups of such Securities
having specified Stated Maturities or rates of interest (or methods of
computing interest) and the Trustee shall thereafter select the particular
Securities (including any Coupons) to be redeemed in the manner
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set forth above from among the groups of such Securities so specified.
The Trustee shall promptly notify the Company in writing of
the Securities (including any Coupons) selected for redemption and, in the case
of any Securities (including any Coupons) 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
(including any Coupons) shall relate, in the case of any Securities (including
any Coupons) redeemed or to be redeemed only in part, to the portion of the
principal amount of such Securities (including any Coupons) which has been or
is to be redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption
shall be given not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, as provided in Section 106.
Each such notice of redemption shall specify the Redemption
Date, the Redemption Price, the Place or Places of Payment, that the Securities
of such series are being redeemed at the option of the Company pursuant to
provisions contained in the terms of the Securities of such series or in a
supplemental indenture establishing such series, if such be the case, together
with a brief statement of the facts permitting such redemption, that on the
Redemption Date the Redemption Price will become due and payable upon each
Security redeemed, that payment will be made upon presentation and surrender of
the applicable Securities, that all Coupons, if any, maturing subsequent to the
date fixed for redemption shall be void, that any interest accrued to the
Redemption Date will be paid as specified in said notice, and that on and after
said Redemption Date any interest thereon or on the portions thereof to be
redeemed will cease to accrue. If less than all the Securities of any series
are to be redeemed the notice of redemption shall specify the numbers of the
Securities of such series to be redeemed, and, if only Bearer Securities of any
series are to be redeemed, and if such Bearer Securities may be exchanged for
Registered Securities, the last date on which exchanges of Bearer Securities
for Registered Securities not subject to redemption may be made. In case any
Security of any series is to be redeemed in part only, the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and
shall state that on and after the Redemption Date, upon surrender of such
Security and any Coupons appertaining thereto, a new Security or Securities of
such series in principal amount equal to the unredeemed portion thereof and
with appropriate Coupons will be issued, or, in the case of Registered
Securities providing appropriate space for such notation, at the option of the
Holders, the Trustee, in lieu of delivering a new Security or Securities as
aforesaid, may make a
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notation on such Security of the payment of the redeemed portion thereof.
Notice of redemption of Securities and Coupons, if any, to be
redeemed at the election of the Company shall be given by the Company or, at
the Company's request, by the Trustee in the name and at the expense of the
Company.
SECTION 1105. Deposit of Redemption Price. On or before the
opening of business on any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
and Coupons, if any, which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest, if any) such Securities shall cease to bear interest and the Coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
Coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest, if any, to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section
1002) and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of Coupons for such interest, and provided, further,
that, unless otherwise specified as contemplated by Section 301, installments
of interest on Registered Securities whose Stated Maturity is on or prior to
the Redemption Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close of business on
the relevant Record Dates according to their terms and the provisions of
Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing Coupons, or the surrender of such
missing Coupon or Coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If
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thereafter the Holder of such Security shall surrender to the Trustee or any
Paying Agent any such missing Coupon in respect of which a deduction shall have
been made from the Redemption Price, such Holder shall be entitled to receive
the amount so deducted; provided, however, that interest represented by Coupons
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of those
Coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and any premium shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security (or, in the case of any Original Issue Discount
Securities, the Security's Yield to Maturity).
SECTION 1107. Security Redeemed in Part. Any Security
(including any Coupons appertaining thereto) which is to be redeemed only in
part shall be surrendered at a Place of Payment therefor (with, if the Company
or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security (including any Coupons appertaining thereto) without service
charge, a new Security (including any Coupons appertaining thereto) or
Securities (including any Coupons appertaining thereto) of the same series and
Stated Maturity and like tenor, of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security (including any Coupons
appertaining thereto) so surrendered.
ARTICLE XII
Sinking Funds
SECTION 1201. Applicability of Article. The provisions of
this Article shall be applicable to any sinking fund for the retirement of
Securities (including any Coupons) of a series except as otherwise specified as
contemplated by Section 301 for Securities (including any Coupons) of such
series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities (including any Coupons) 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 (including any
Coupons) of any series is herein referred to as an "optional sinking fund
payment". If provided for by the terms of Securities (including
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any Coupons) 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 (including any Coupons) of any
series as provided for by the terms of Securities (including any Coupons) of
such series.
SECTION 1202. Satisfaction of Sinking Fund Payments With
Securities. The Company (1) may deliver Outstanding Securities (including any
Coupons) of a series (other than any previously called for redemption) and (2)
may apply as a credit Securities (including any Coupons) of a series which have
been redeemed (or called for redemption and for which the Redemption Price,
together with accrued interest, if any, has been deposited pursuant to Section
1105), either at the election of the Company pursuant to the terms of such
Securities (including any Coupons) or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities
(including any Coupons), in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Securities (including any Coupons) of
such series required to be made pursuant to the terms of such Securities
(including any Coupons) as provided for by the terms of such series; provided
that such Securities (including any Coupons) have not been previously so
credited. Such Securities (including any Coupons) shall be received and
credited for such purpose by the Trustee at the Redemption Price specified in
such Securities (including any Coupons) 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 (including any Coupons), the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting
Securities (including any Coupons) of that series pursuant to Section 1202 and
the optional amount, if any, to be added in cash to the next ensuing mandatory
sinking fund payment, and will also deliver to the Trustee any Securities
(including any Coupons) to be so delivered. If such Officers' Certificate
shall specify an optional amount to be added in cash to the next ensuing
mandatory sinking fund payment, the Company shall thereupon be obligated to pay
the amount therein specified. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities (including any
Coupons) to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner provided
in Section 1104. Such notice having been duly given, the redemption of such
Securities
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(including any Coupons) shall be made upon the terms and in the manner stated
in Sections 1106 and 1107.
ARTICLE XIII
Meetings of Holders of Securities
SECTION 1301. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable as Bearer Securities, a meeting of
Holders of Securities of such series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1302. Call, Notice and Place of Meetings. (a) The
Trustee may at any time call a meeting of Holders of Securities of any series
for any purpose specified in Section 1301, to be held at such time and at such
place in the Borough of Manhattan, The City of New York, or in London, as the
Trustee shall determine. Notice of every meeting of Holders of Securities of
any series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more than 180 days prior
to the date fixed for the meeting.
(b) In case at any time the Company, by or pursuant to a
Board Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified
in Section 1301, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have made
the first publication of the notice of such meeting within 21 days after
receipt of such request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Company or the Holders of Securities of
such series in the amount above specified, as the case may be, may determine
the time and the place in the Borough of Manhattan, The City of New York, or in
London, for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this Section.
SECTION 1303. 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 (1) a Holder of one or more Outstanding Securities of such
series, or (2) 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
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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 1304. Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series. In
the absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Securities
of such series, be dissolved. In any other case the meeting may be adjourned
for a period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such meeting. In the absence of a quorum
at any such adjourned meeting, such adjourned meeting may be further adjourned
for a period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
1302(a), except that such notice need be given only once not less than five
days prior to the date on which the meeting is scheduled to be reconvened.
Subject to the foregoing, at the reconvening of any such further adjourned
meeting, the Persons entitled to vote 25% in aggregate principal amount of the
Outstanding Securities of such series shall constitute a quorum for the taking
of any action set forth in the notice of the original meeting. Notice of the
reconvening of an adjourned meeting which was adjourned for lack of a quorum
shall state expressly the percentage, as provided above, of the principal
amount of the Outstanding Securities of such series which shall constitute a
quorum.
Except as limited by the proviso to Section 902, and subject
to the provisions described in the next succeeding paragraph, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum
is present as aforesaid may be adopted by the affirmative vote of the lesser of
(i) the Holders of a majority in principal amount of the Outstanding Securities
of that series and (ii) 66-2/3% in principal amount of Outstanding Securities
of such series represented and voting at such meeting or adjourned meeting;
provided, however, that any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the lesser of (i) the Holders of such specified percentage
in principal amount of the Outstanding Securities of that series and (ii) a
majority in principal amount of Outstanding Securities of such series
represented and voting at such meeting or adjourned meeting. Any resolution
passed or decision taken at any meeting of Holders of Securities of any
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series duly held in accordance with this Section shall be binding on all the
Holders of Securities of such series and the related Coupons, whether or not
present or represented at the meeting.
With respect to any consent, waiver or other action which this
Indenture expressly provides may be given by the Holders of a specified
percentage of Outstanding Securities of all series affected thereby (acting as
one class), only the principal amount of Outstanding Securities of any series
represented at a meeting or adjourned meeting duly reconvened at which a quorum
was present, held in accordance with this Section, and voting in favor of such
action, shall be counted for purposes of calculating the aggregate principal
amount of Outstanding Securities of all series affected thereby favoring such
action.
SECTION 1305. Determination of Voting Rights; Conduct and
Adjournment of Meetings. (a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of a series in regard to
proof of the holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be proved in
the manner specified in Section 104 or by having the signature of the person
executing the proxy witnessed or guaranteed by any trust company, bank or
banker authorized by Section 104 to certify to the holder of Bearer Securities.
Such regulations may provide that written instruments appointing proxies,
regular on their face, may be presumed valid and genuine without the proof
specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1302(b), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series
or proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the
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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 1302 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 1306. 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 duplicate of all votes cast at the meeting. A record, at least in
duplicate, 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 1302 and, if
applicable, Section 1304. 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 XIV
Immunity of Incorporators, Stockholders,
Officers and Directors
SECTION 1401. Immunity of Incorporators, Stockholders,
Officers and Directors. No recourse shall be had for the payment of the
principal of (or premium, if any, on) or interest, if any, on, any Security of
any series (or any Coupon appertaining thereto), or any part thereof, or for
any claim based thereon or otherwise in respect thereof, or of the indebtedness
represented thereby, or upon any obligation, covenant or agreement of this
Indenture, against any incorporator, direct or indirect stockholder, officer or
director, as such, past, present or
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future, of the Company, or of any successor corporation, either directly or
through the Company or any successor corporation, whether by virtue of any
constitutional provision, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly agreed and understood
that this Indenture and all the Securities of all series (and any Coupons
appertaining thereto) are solely corporate obligations, and that no personal
liability whatsoever shall attach to, or be incurred by, any incorporator,
direct or indirect stockholder, officer or director, as such, past, present or
future, of the Company or of any successor corporation, either directly or
through the Company or any successor corporation, because of the incurring of
the indebtedness hereby authorized or under or by reason of any of the
obligations, covenants, promises or agreements contained in this Indenture or
in any of the Securities of any series (or any Coupons appertaining thereto) or
to be implied herefrom or therefrom, and that all liability, if any, of that
character against every such incorporator, stockholder, officer and director
is, by the acceptance of the Securities of any series (or any Coupons
appertaining thereto), and as a condition of, and as part of the consideration
for, the execution of this Indenture and the issue of the Securities (and any
Coupons appertaining thereto), expressly waived and released.
ARTICLE XV
Subordination
SECTION 1501. Agreement to Subordinate. Anything to the
contrary herein notwithstanding, the Company covenants and agrees, and each
Holder of Securities of any series (or any Coupons appertaining thereto) by
acceptance thereof likewise covenants and agrees, that the indebtedness
represented by the Securities of such series (and any Coupons appertaining
thereto) and the payment of the principal of (and premium, if any, on) and
interest, if any, on each and all of the Securities of such series (and any
Coupons appertaining thereto) shall be subordinate and junior in right of
payment, to the extent and in the manner hereinafter set forth, to the prior
payment in full of all Senior Debt (as defined below), whether outstanding at
the date hereof or incurred after the date hereof, but shall in all respects
rank pari passu with all other Senior Subordinated Debt (as defined below).
SECTION 1502. No Payments to Holders of Securities in Certain
Circumstances. (a) In the event of any sale under or in accordance with any
judgment or decree rendered in any proceeding by or on behalf of any Holder of
Securities (or any Coupons appertaining thereto) or in the event of any
distribution, division or application, partial or complete, voluntary or
involuntary, by operation of law or otherwise, of all or any part of the assets
of the Company, or the proceeds thereof, to
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creditors of the Company occurring by reason of any liquidation, dissolution or
winding up of the Company, or in the event of any receivership, insolvency,
bankruptcy, liquidation, readjustment, reorganization or other similar
proceeding relative to the Company or its debts or properties, then in any such
event the holders of any and all Senior Debt shall be preferred in the payment
of their claims over the Holders of Securities (or any Coupons appertaining
thereto), and such Senior Debt shall be first paid and satisfied in full before
any payment or distribution of any kind or character, whether in cash, property
or securities (other than securities which are subordinate and junior in right
of payment to the payment of all Senior Debt which may at the time be
outstanding), shall be made upon the Securities (or any Coupons appertaining
thereto); and in any such event any dividend or distribution of any kind or
character, whether in cash, property or securities (other than in securities
which are subordinate and junior in right of payment to the payment of all
Senior Debt which may at the time be outstanding) which shall be made upon or
in respect of the indebtedness evidenced by the Securities (or any Coupons
appertaining thereto), or any renewals or extensions thereof, shall be paid
over to the holders of such Senior Debt, pro rata, for application in payment
thereof unless and until such Senior Debt shall have been paid and satisfied in
full; and
(b) In the event that pursuant to the provisions hereof
any Security is declared or becomes due and payable before its Stated Maturity
because of an occurrence of an Event of Default (under circumstances when
paragraph (a) of this Section 1502 shall not be applicable), no amount shall be
paid by the Company in respect of the principal of or interest, if any, on the
Securities (or any Coupons appertaining thereto) in excess of current interest
payments as provided herein, except at the Stated Maturity thereof or in
accordance with any regular mandatory prepayments as contemplated by Section
301 for Securities of any series (or any Coupons appertaining thereto) (all
subject to paragraph (a) of this Section 1502), unless and until all Senior
Debt outstanding at the time such Security so becomes due and payable because
of any such event shall have been paid in full or payment thereof shall have
been provided for in a manner satisfactory to the holders of such outstanding
Senior Debt; and
(c) Without limiting the effect of any of the other
provisions of this Article XV, during the continuance of any default with
respect to any Senior Debt, no payment of principal, sinking fund, interest or
premium shall be made on or with respect to the indebtedness evidenced by the
Securities (or any Coupons appertaining thereto) or any renewals or extensions
hereof, if either (1) notice of such default in writing or by telegram has been
given to the Company by any holder or holders of any Senior Debt, provided that
judicial proceedings shall be commenced with respect to such default within 120
days thereafter
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or (2) judicial proceedings shall be pending in respect of such default.
The Company covenants and agrees, for the benefit of each and
every present and future holder of Senior Debt, that in the event that pursuant
to the provisions hereof any Security is declared or becomes due and payable
because of an occurrence of an Event of Default, then each holder of any Senior
Debt then outstanding shall have the right to declare immediately due and
payable on demand all or any part of such Senior Debt owing and payable to such
holder, regardless of any other maturity or terms of said Senior Debt; and if
and when any such default has occurred, or any notice of default under the
terms hereof may be served upon the Company, then in each such event the
Company shall and hereby agrees that it will immediately notify the holders of
the Senior Debt of such default or notice thereof, as the case may be.
SECTION 1503. Payments by Trustee or Holders of Securities to
Holders of Senior Debt. In the event that any payment by, or distribution of
assets of, the Company of any kind or character, whether in cash, property or
securities, shall be received by the Trustee or the Holders of Securities (or
any Coupons appertaining thereto) before all Senior Debt is paid in full,
contrary to the provisions of Section 1502, such payment or distribution shall
be paid over to the holders of such Senior Debt or their representative or
representatives or to the trustee or trustees under any indenture under which
any instruments evidencing any of such Senior Debt may have been issued,
ratably as aforesaid, for application to the payment of all Senior Debt
remaining unpaid until all such Senior Debt shall have been paid in full, after
giving effect to any concurrent payment or distribution (or provision therefor)
to the holders of such Senior Debt.
SECTION 1504. Subrogation. Subject to the payment in full of
all Senior Debt, the Holders of Securities (and any Coupons appertaining
thereto) shall be subrogated to the rights of the holders of Senior Debt to
receive payments or distributions of cash, property or securities of the
Company applicable to the Senior Debt until all amounts owing on the Securities
(and any Coupons appertaining thereto) shall be paid in full, and, as between
the Company, its creditors other than holders of Senior Debt, and the Holders
of Securities (and any Coupons appertaining thereto), no such payment or
distribution made to the holders of Senior Debt by virtue of this Article XV
which otherwise would have been made to the Holders of Securities (and any
Coupons appertaining thereto) shall be deemed to be a payment by the Company on
account of the Senior Debt, it being understood that the provisions of this
Article XV are and are intended solely for the purpose of defining the relative
rights of the Holders of Securities (and any Coupons appertaining thereto), on
the one hand, and the holders of Senior Debt, on the other hand.
-78-
<PAGE> 86
SECTION 1505. Obligation of Company Unconditional. Nothing
herein shall impair, as between the Company and the Holders of Securities (and
any Coupons appertaining thereto), the right of the Holder of any Security or
any Coupon, which is absolute and unconditional, to receive payment of the
principal (and premium, if any) and interest, if any, thereon in accordance
with their terms, or shall prevent the Trustee or any Paying Agent from
applying any moneys deposited with it hereunder to the payment of principal of
(or premium, if any) or interest, if any, on any of the Securities (or any
Coupons appertaining thereto), in each case except as otherwise provided in
this Article XV, nor shall anything herein prevent any Holder of Securities (or
any Coupons appertaining thereto) from exercising all remedies otherwise
permitted by applicable law or hereunder upon default hereunder, subject to the
rights, if any, of holders of Senior Debt as herein provided. Each and every
holder of Securities (or any Coupons appertaining thereto) by acceptance
thereof shall undertake and agree for the benefit of each holder of Senior Debt
to execute, verify, deliver and file any proofs of claim, consents, assignments
or other instruments which any holder of Senior Debt may at any time require in
order to prove and realize upon any rights or claims pertaining to the
Securities (or any Coupons appertaining thereto) and to effectuate the full
benefit of the subordination contained in this Article XV.
Upon any payment or distribution of assets of the Company
referred to in this Article XV, the Trustee and the Holders of Securities (or
any Coupons appertaining thereto) shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which any such
dissolution, winding up, liquidation or reorganization proceeding affecting the
affairs of the Company is pending or upon a certificate of the liquidating
trustee or agent or other person making any payment or distribution to the
Trustee or to the Holders of Securities (or any Coupons appertaining thereto)
for the purpose of ascertaining the persons entitled to participate in such
payment or distribution, the holders of the Senior Debt and other indebtedness
of the Company, the amount thereof or payable thereon, the amount paid or
distributed thereon and all other facts pertinent thereto or to this Article
XV. In the event that the Trustee determines, in good faith, that further
evidence is required with respect to the right of any person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article XV, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt held by
such person, as to the extent to which such person is entitled to participate
in such payment or distribution, and as to other facts pertinent to the rights
of such person under this Article XV, and 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.
-79-
<PAGE> 87
SECTION 1506. Payments on Securities Permitted. Nothing
contained in this Article XV or elsewhere in this Indenture, or in any of the
Securities (or any Coupons appertaining thereto), shall (a) affect the
obligation of the Company to make, or prevent the Company from making, at any
time except in the event of any event specified in Section 1502, payments at
any time of principal of (or premium, if any) or interest, if any, on the
Securities of any series (or any Coupons appertaining thereto) or of any
sinking fund payments with respect to the Securities of any series, or (b)
prevent the application by the Trustee or any Paying Agent of any moneys held
by the Trustee or such Paying Agent in trust for the benefit of the holders of
Securities of any series (and any Coupons appertaining thereto) as to which
notice of redemption shall have been mailed or published at least once prior to
the happening of an event specified in paragraph (b) or (c) of Section 1502 to
the payment of or on account of the principal of (and premium, if any on) and
interest, if any, on such Securities (and any Coupons appertaining thereto), or
(c) prevent the application by the Trustee or any Paying Agent of any moneys
deposited prior to the happening of any event specified in paragraph (b) or (c)
of Section 1502 with the Trustee or such Paying Agent in trust for the purpose
of paying a specified installment or installments of interest on the Securities
of any series (or any Coupons appertaining thereto), to the payment of such
installments of interest on the Securities of any series (or any Coupons
appertaining thereto).
SECTION 1507. Effectuation of Subordination by Trustee. Each
holder of Securities (or any Coupons appertaining thereto), by his acceptance
thereof, authorizes and directs the Trustee in his behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article XV and appoints the Trustee his attorney-in-fact for any and all
such purposes.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Debt and, with respect to the holders of Senior Debt, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article XV, and no implied
covenants or obligations with respect to the holders of Senior Debt shall be
read into this Indenture against the Trustee. Subject to the provisions of
Section 601, the Trustee shall not be liable to any holder of Senior Debt if it
shall mistakenly pay over or deliver to holders of Securities (or any Coupons
appertaining thereto), the Company or any other person moneys or assets to
which any holder of Senior Debt shall be entitled by virtue of this Article XV
or otherwise.
SECTION 1508. Knowledge of Trustee. Notwithstanding the
provisions of this Article XV or any other provisions of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which
would prohibit the making of any
-80-
<PAGE> 88
payment of moneys to or by the Trustee, or the taking of any other action by
the Trustee, unless and until the Trustee shall have received written notice
thereof from the Company, any Holder, any Paying Agent or the holder or
representative of any class of Senior Debt.
Prior to the receipt of any such written notice, the Trustee,
subject to the provisions of Section 601, shall be entitled in all respects to
assume that no such facts exist; provided, that if on a date not less than one
day prior to the date upon which by the terms hereof any such moneys may become
payable for any purpose (including, without limitation, the payment of the
principal of or interest, if any, on any Securities (or any Coupons
appertaining thereto)), the Trustee shall not have received with respect to
such moneys the notice provided for in this Section 1508, then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power
and authority to receive such moneys and to apply the same to the purpose for
which they were received, and shall not be affected by any notice to the
contrary which may be received by it on or after such prior date.
SECTION 1509. Trustee May Hold Senior Debt. The Trustee
shall be entitled to all the rights set forth in this Article XV with respect
to any Senior Debt at the time held by it, to the same extent as any other
holder of Senior Debt, and nothing in Section 613 or elsewhere in this
Indenture shall deprive the Trustee of any of its rights as such holder.
SECTION 1510. Rights of Holders of Senior Debt Not Impaired.
No right of any present or future holder of any Senior Debt to enforce the
subordination herein shall at any time or in any way be prejudiced or impaired
by any act or failure to act on the part of the Company or by any
non-compliance 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.
SECTION 1511. Rights and Obligations Subject to Power of
Court. The right of the holders of Senior Debt and the obligations of the
Trustee and the Holders of Securities (and any Coupons appertaining thereto)
set forth in this Article XV are subject to the power of a court of competent
jurisdiction to make other equitable provision reflecting the rights conferred
in this Indenture upon the Senior Debt and the holders thereof with respect to
the Securities (and any Coupons appertaining thereto) and the holders thereof
by a plan of reorganization under applicable bankruptcy law.
SECTION 1512. Definitions. The following terms shall have
the following meanings:
"Capital Debt" means the Subordinated Debt of the Company
which by the terms of the instrument creating or
-81-
<PAGE> 89
evidencing such Debt is subordinate and junior in right of payment to
all Senior Debt, Senior Subordinated Debt and Junior Subordinated
Debt.
"Junior Subordinated Debt" means any Subordinated Debt of the
Company which is not Senior Subordinated Debt or Capital Debt.
"Senior Debt" means all Debt of the Company except
Subordinated Debt.
"Senior Subordinated Debt" means the Company's 8.875% Senior
Subordinated Notes due 1998, the Company's 7 1/2% Senior Subordinated
Notes Due 1999, and any other Subordinated Debt of the Company which
by the terms of the instrument creating or evidencing such Debt is not
subordinate and junior in right of payment to the Securities.
"Subordinated Debt" means all Debt (including but not limited
to Senior Subordinated Debt, Junior Subordinated Debt and Capital
Debt) which is subordinated and junior in right of payment to any
other Debt of the Company by the terms of the instrument creating or
evidencing such Subordinated Debt.
-82-
<PAGE> 90
EXHIBIT A
[FORMS OF CERTIFICATION]
[FORM OF CERTIFICATE TO BE GIVEN BY PERSON
ENTITLED TO RECEIVE BEARER SECURITY OR TO
OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE]
EXHIBIT A.1.
ARISTAR, INC.
[Insert title or sufficient description
of Securities to be delivered]
(the "Securities")
This is to certify that, as of the date hereof, and except as
set forth below, the above-referenced Securities held by you for our account
are owned by (i) persons that are not citizens or residents of the United
States, domestic partnerships, domestic corporations or estates or trusts the
income of which is subject to United States federal income taxation regardless
of its source ("United States persons"), (ii) United States persons that (a)
are foreign branches of United States financial institutions (as defined in
U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions")
purchasing for their own accounts or for resale or (b) acquired the Securities
through foreign branches of United States financial institutions and that hold
the Securities through such United States financial institutions on the date
hereof (and in the case of either (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you may
advise the issuer or the issuer's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B)
<PAGE> 91
or (C) of the United States Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) financial institutions for purposes of resale
during the restricted period (as defined in U.S. Treasury Regulations Section
1.163- 5(c)(2)(i)(D)(7)), and in addition, if we are a financial institution
described in this clause (iii) (whether or not also described in clause (i) or
(ii)), we certify that we have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia), its territories,
its possessions, the Commonwealth of Puerto Rico, and other areas subject to its
jurisdiction.
We undertake to advise you promptly by tested telex on or prior
to the date on which you intend to submit your certification relating to the
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date and,
in the absence of any such notification, it may be assumed that this
certification applies as of such date.
This certification excepts and does not relate to
$________________ principal amount of such Securities, in respect of which we
are not able to certify as above and as to which we understand exchange and
delivery of definitive Securities (or, if relevant, exercise of any rights or
collection of any interest) cannot be made until we do so certify.
-2-
<PAGE> 92
We understand that this certification is required in
connection with certain tax laws of the United States. In connection
therewith, if administrative or legal proceedings are commenced or threatened
in connection with which this certification is or would be relevant, we
irrevocably authorize you to produce this certification to any interested party
in such proceedings.
Dated:_________________________
[To be dated no earlier
than 15 days prior to the
Exchange Date or the first
interest payment date prior
to the Exchange Date, as
relevant]
By: __________________________
As, or as agent for, the
beneficial owner(s) of the
Securities to which this
certificate relates.
-3-
<PAGE> 93
EXHIBIT A.2
[FORM OF CERTIFICATE TO BE GIVEN BY
EURO-CLEAR OR CEDEL, S.A. IN
CONNECTION WITH THE EXCHANGE OF A
PORTION OF A TEMPORARY GLOBAL SECURITY
OR TO OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE]
ARISTAR, INC.
[Insert title or sufficient description of
Securities to be delivered]
(the "Securities")
This is to certify that, based solely on certifications we
have received in writing, by tested telex or by electronic transmission from
member organizations appearing in our records as persons being entitled to a
portion of the principal amount set forth below (our "Member Organizations"),
substantially as set forth in the Temporary Global Security with respect to the
Securities, as of the date hereof, $___________ principal amount of the
above-captioned Securities is owned by (i) persons that are not citizens or
residents of the United States, domestic partnerships, domestic corporations,
or estates or trusts the income of which is subject to United States federal
income taxation regardless of its source ("United States persons"), (ii) United
States persons that (a) are foreign branches of United States financial
institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own accounts
or for resale or (b) acquired the Securities through foreign branches of United
States
-4-
<PAGE> 94
financial institutions and that hold the Securities through such United States
financial institutions on the date hereof (and in the case of either (a) or
(b), each such United States financial institution has agreed, on its own
behalf or through its agent, that we may advise the issuer or the issuer's
agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the United States Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) financial institutions for purposes of resale
during the restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), which financial institutions described in this clause
(iii) (whether or not also described in clause (i) or (ii)) have certified that
they have not acquired the Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United States.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia), its territories,
its possessions, the Commonwealth of Puerto Rico and other areas subject to its
jurisdiction.
We further certify (i) that we are not making available
herewith for exchange (or, if relevant, exercise of any rights or collection of
any interest) any portion of the Temporary Global Security excepted in such
certifications and (ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange (or, if relevant, exercise of any
-5-
<PAGE> 95
rights or collection of any interest) are no longer true and cannot be relied
upon as the date hereof.
We understand that this certification is required in connection
with certain tax laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
*Dated: , 199__ Yours faithfully,
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, Brussels office
as operator of the Euro-clear System
or
CEDEL, S.A.
By:
________________________________
* [Not earlier than the Exchange
Date or the first interest
payment date prior to the
Exchange Date, as relevant.]
-6-
<PAGE> 1
Exhibit 5
March 30, 1995
Re: Aristar, Inc. - Registration Statement on Form S-3
with respect to $600,000,000 aggregate principal
amount of senior debt securities and/or senior
subordinated debt securities
Aristar, Inc.
8900 Grand Oak Circle
Tampa, Florida 33637-1050
Ladies and Gentlemen:
We have acted as counsel for Aristar, Inc., a Delaware corporation
(the "Company"), in connection with the filing by the Company with the
Securities and Exchange Commission of a Registration Statement on Form S-3 (the
"Registration Statement") with respect to $600,000,000 aggregate principal
amount of the Company's senior debt securities and/or senior subordinated debt
securities (collectively, the "Securities") for issuance from time to time
pursuant to Rule 415 under the Securities Act of 1933, as amended (the
"Securities Act"). The Securities will be issued pursuant to an indenture to
be dated as of _______________, 1995 between the Company and The Bank of New
York, as Trustee for the senior debt securities, or pursuant to an indenture to
be dated as of _____________, 1995 between the Company and The Bank of New
York, as Trustee for the senior subordinated debt securities (collectively, the
"Indentures" and individually, an "Indenture").
In so acting, we have examined originals (or copies certified or
otherwise identified to our satisfaction) of the Registration Statement, the
forms of Securities certificates, the forms of the Indentures, the Certificate
of Incorporation and By-laws of the Company as in effect on the date hereof,
corporate and other documents, records and papers, certificates of public
<PAGE> 2
-2-
officials and certificates of officers of the Company. In rendering the
opinion hereinafter set forth, we have assumed the validity of and relied upon
the representations of officers of the Company and of the Company's parent,
Great Western Financial Corporation, as to certain factual matters relevant
thereto.
On the basis of such examination, it is our opinion, assuming (i)
the applicable provisions of the Securities Act, the Trust Indenture Act of
1939, as amended, and the securities or "blue sky" laws of various states shall
have been complied with, (ii) each of the Indentures shall have been duly
authorized, executed and delivered, and (iii) the Securities shall have been
duly authorized, executed, authenticated and delivered against the
consideration therefor to be set forth in the supplement or supplements to the
prospectus constituting a part of the Registration Statement:
The Securities will be legally issued, fully paid and nonassessable
and will constitute valid and legally binding obligations of the Company
entitled to the benefits of the applicable Indenture, except as enforcement
thereof may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally, by general equitable principles (regardless of
whether enforceability is considered in a proceeding in equity or at law)
and by an implied covenant of good faith and fair dealing.
We hereby consent to the filing of this opinion
as an exhibit to the Registration Statement and to the
reference to this firm under the heading "Legal Opinions"
in the related prospectus. In giving this consent, we do
not thereby admit that we are within the category of
persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/WINTHROP, STIMSON, PUTNAM
& ROBERTS
<PAGE> 1
Exhibit 12
ARISTAR, INC. AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Unaudited)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------------------------------------------------------
(Dollars in Thousands) 1994 1993 1992 1991 1990
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Income from operations
before income taxes
and cumulative effect
of a change in
accounting principle $ 91,592 $ 79,683 $ 75,728 $ 63,430 $ 37,480
-------- -------- -------- -------- --------
Fixed charges:
Interest and debt
expense on all
indebtedness $ 87,074 86,385 89,005 80,261 92,154
Appropriate portion
of rentals (33%) 2,537 2,825 2,358 2,157 2,062
-------- -------- -------- -------- --------
Total fixed charges 89,611 89,210 91,363 82,418 94,216
-------- -------- -------- -------- --------
Earnings available for
fixed charges $181,203 $168,893 $167,091 $145,848 $131,696
-------- -------- -------- -------- --------
Ratio of earnings to
fixed charges 2.02 1.89 1.83 1.77 1.40
======== ======== ======== ======== ========
</TABLE>
<PAGE> 1
Exhibit 23(a)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the
Prospectus constituting part of this Registration Statement on Form S-3 of our
report dated January 17, 1995 appearing on page 10 of Aristar, Inc.'s Annual
Report on Form 10-K for the year ended December 31, 1994. We also consent to
the reference to us under the heading "Experts" in such Prospectus.
PRICE WATERHOUSE LLP
Tampa, Florida
March 29, 1995
<PAGE> 1
Exhibit 25(a)
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
______________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
______________________
Aristar, Inc.
(Exact name of obligor as specified in its charter)
Delaware 95-4128205
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
8900 Grand Oak Circle
Tampa, Florida 33637-1050
(Address of principal executive offices) (Zip code)
----------------------
Debt Securities
(Title of the indenture securities)
===============================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
<TABLE>
<CAPTION>
------------------------------------------------------------------------------
Name Address
------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany,
N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None. (See Note on page 3.)
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE 24
OF THE COMMISSION'S RULES OF PRACTICE.
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
<PAGE> 3
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the answer
to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 22nd day of March, 1995.
THE BANK OF NEW YORK
By: /S/ MARY JANE MORRISSEY
--------------------------
Name: MARY JANE MORRISSEY
Title: ASSISTANT VICE PRESIDENT
<PAGE> 5
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1994, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 2,715,471
Interest-bearing balances .......... 853,709
Securities:
Held-to-maturity securities ........ 1,346,480
Available-for-sale securities ...... 1,564,425
Federal funds sold in domestic
offices of the bank ................ 5,557,770
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................24,091,702
LESS: Allowance for loan and
lease losses ..............581,958
LESS: Allocated transfer risk
reserve .....................31,502
Loans and leases, net of unearned
income, allowance, and reserve 23,478,242
Assets held in trading accounts ...... 746,396
Premises and fixed assets (including
capitalized leases) ................ 624,567
Other real estate owned .............. 46,570
Investments in unconsolidated
subsidiaries and associated
companies .......................... 181,905
Customers' liability to this bank on
acceptances outstanding ............ 794,339
Intangible assets .................... 77,527
Other assets ......................... 1,300,004
-----------
Total assets ......................... $39,287,405
===========
</TABLE>
<PAGE> 6
<TABLE>
<S> <C>
LIABILITIES
Deposits:
In domestic offices ................ $18,681,498
Noninterest-bearing .......7,230,562
Interest-bearing .........11,450,936
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 10,611,477
Noninterest-bearing ..........69,012
Interest-bearing .........10,542,465
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,033,228
Securities sold under agreements
to repurchase .................... 31,875
Demand notes issued to the U.S.
Treasury ........................... 141,663
Trading liabilities .................. 562,071
Other borrowed money:
With original maturity of one year
or less .......................... 1,576,410
With original maturity of more than
one year ......................... 243,955
Bank's liability on acceptances exe-
cuted and outstanding .............. 796,534
Subordinated notes and debentures .... 1,056,320
Other liabilities .................... 1,490,732
-----------
Total liabilities .................... 36,225,763
===========
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,654,282
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ ( 54,920)
Cumulative foreign currency transla-
tion adjustments .................. ( 5,670)
-----------
Total equity capital ................ 3,061,642
-----------
Total liabilities and equity
capital ........................... $39,287,405
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
<PAGE> 7
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
)
Thomas A. Renyi )
J. Carter Bacot )---- Directors
Alan R. Griffith )
)
<PAGE> 1
Exhibit 25(b)
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
______________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
______________________
Aristar, Inc.
(Exact name of obligor as specified in its charter)
Delaware 95-4128205
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
8900 Grand Oak Circle
Tampa, Florida 33637-1050
(Address of principal executive offices) (Zip code)
----------------------
Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
<TABLE>
<CAPTION>
------------------------------------------------------------------------------
Name Address
------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany,
N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None. (See Note on page 3.)
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE 24
OF THE COMMISSION'S RULES OF PRACTICE.
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
<PAGE> 3
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the answer
to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 22nd day of March, 1995.
THE BANK OF NEW YORK
By: /S/ MARY JANE MORRISSEY
--------------------------
Name: MARY JANE MORRISSEY
Title: ASSISTANT VICE PRESIDENT
<PAGE> 5
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1994, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 2,715,471
Interest-bearing balances .......... 853,709
Securities:
Held-to-maturity securities ........ 1,346,480
Available-for-sale securities ...... 1,564,425
Federal funds sold in domestic
offices of the bank ................ 5,557,770
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................24,091,702
LESS: Allowance for loan and
lease losses ..............581,958
LESS: Allocated transfer risk
reserve .....................31,502
Loans and leases, net of unearned
income, allowance, and reserve 23,478,242
Assets held in trading accounts ...... 746,396
Premises and fixed assets (including
capitalized leases) ................ 624,567
Other real estate owned .............. 46,570
Investments in unconsolidated
subsidiaries and associated
companies .......................... 181,905
Customers' liability to this bank on
acceptances outstanding ............ 794,339
Intangible assets .................... 77,527
Other assets ......................... 1,300,004
-----------
Total assets ......................... $39,287,405
===========
</TABLE>
<PAGE> 6
<TABLE>
<S> <C>
LIABILITIES
Deposits:
In domestic offices ................ $18,681,498
Noninterest-bearing .......7,230,562
Interest-bearing .........11,450,936
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 10,611,477
Noninterest-bearing ..........69,012
Interest-bearing .........10,542,465
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,033,228
Securities sold under agreements
to repurchase .................... 31,875
Demand notes issued to the U.S.
Treasury ........................... 141,663
Trading liabilities .................. 562,071
Other borrowed money:
With original maturity of one year
or less .......................... 1,576,410
With original maturity of more than
one year ......................... 243,955
Bank's liability on acceptances exe-
cuted and outstanding .............. 796,534
Subordinated notes and debentures .... 1,056,320
Other liabilities .................... 1,490,732
-----------
Total liabilities .................... 36,225,763
===========
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,654,282
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ ( 54,920)
Cumulative foreign currency transla-
tion adjustments .................. ( 5,670)
-----------
Total equity capital ................ 3,061,642
-----------
Total liabilities and equity
capital ........................... $39,287,405
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
<PAGE> 7
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
)
Thomas A. Renyi )
J. Carter Bacot )---- Directors
Alan R. Griffith )
)
