<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 15, 1998
REGISTRATION NO. 333-62875
POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION STATEMENT NO. 333-55851
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM S-3
PRE-EFFECTIVE
AMENDMENT NO. 1
TO
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
<TABLE>
<S> <C>
ASSOCIATES FIRST CAPITAL TRUST I
ASSOCIATES FIRST CAPITAL TRUST II
ASSOCIATES FIRST CAPITAL TRUST III
ASSOCIATES FIRST CAPITAL CORPORATION (Exact name of each registrant as specified in its
(Exact name of registrant as specified in charter) Trust Agreement)
DELAWARE DELAWARE
(State or other jurisdiction (State or other jurisdiction
of incorporation or organization) of incorporation or organization of each registrant)
06-0876639 EACH TO BE APPLIED FOR
(I.R.S. Employer (I.R.S. Employer
Identification No.) Identification No.)
C/O ASSOCIATES FIRST CAPITAL CORPORATION
250 EAST CARPENTER FREEWAY 250 EAST CARPENTER FREEWAY
IRVING, TX 75062-2729 IRVING, TEXAS 75062-2729
972-652-4000 972-652-4000
(Address, including zip code, and telephone number, (Address, including zip code, and telephone number,
including including
area code, of registrant's principal executive area code, of registrant's principal executive
offices) offices)
</TABLE>
CHESTER D. LONGENECKER, ESQ.
EXECUTIVE VICE PRESIDENT
AND GENERAL COUNSEL
250 EAST CARPENTER FREEWAY
IRVING, TX 75062-2729
972-652-4000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------
Copies to:
<TABLE>
<S> <C>
DAVID P. BICKS, ESQ. TIMOTHY M. HAYES, ESQ.
LEBOEUF, LAMB, GREENE & MACRAE, L.L.P. 250 EAST CARPENTER FREEWAY
125 WEST 55TH STREET IRVING, TX 75062-2729
NEW YORK, NY 10019
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO 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, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT 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 SEPTEMBER 15, 1998
PROSPECTUS
$7,500,000,000
[ASSOCIATES FIRST CAPITAL CORPORATION LOGO]
DEBT SECURITIES, PREFERRED STOCK,
CLASS A COMMON STOCK, WARRANTS,
STOCK PURCHASE CONTRACTS AND
STOCK PURCHASE UNITS
------------------------
ASSOCIATES FIRST CAPITAL TRUST I
ASSOCIATES FIRST CAPITAL TRUST II
ASSOCIATES FIRST CAPITAL TRUST III
PREFERRED SECURITIES FULLY AND UNCONDITIONALLY GUARANTEED,
AS DESCRIBED HEREIN, BY
ASSOCIATES FIRST CAPITAL CORPORATION
Associates First Capital Corporation, a Delaware corporation (the
"Company"), may offer and sell from time to time, together or separately, (i)
its unsecured debt securities ("Debt Securities"), which may be senior (the
"Senior Debt Securities"), subordinated (the "Subordinated Debt Securities"), or
junior subordinated (the "Junior Subordinated Debt Securities") in priority of
payment, (ii) shares of its preferred stock, par value $.01 per share, which may
be represented by depositary shares as described herein (the "Preferred Stock"),
(iii) shares of its Class A Common Stock, par value $.01 per share (the "Class A
Common Stock"), (iv) warrants (the "Warrants") to purchase any of the foregoing
Debt Securities, Preferred Stock or Class A Common Stock, (v) stock purchase
contracts ("Stock Purchase Contracts") to purchase shares of Class A Common
Stock or (vi) stock purchase units ("Stock Purchase Units"), each representing
ownership of a Stock Purchase Contract and any of (x) Debt Securities, (y) debt
obligations of third parties, including U.S. Treasury Securities, or (z)
Preferred Securities (as defined below) of an Associates Trust (as defined
below), securing the holder's obligation to purchase Class A Common Stock under
the Stock Purchase Contract. The Debt Securities, the Preferred Stock, the Class
A Common Stock, the Warrants, the Stock Purchase Contracts and the Stock
Purchase Units, together with the Preferred Securities and the related
Guarantees (as defined below), are collectively referred to herein as the
"Securities." The Securities may be offered in one or more separate classes or
series, in amounts, at prices and on terms to be determined at the time of the
offering thereof and to be set forth in a supplement or supplements to this
Prospectus (each, a "Prospectus Supplement"). The Securities may be sold for
U.S. dollars, foreign currencies or foreign currency units, and the Securities
may be payable in U.S. dollars, foreign currencies or foreign currency units.
Associates First Capital Trust I, Associates First Capital Trust II and
Associates First Capital Trust III, each a statutory business trust created
under the laws of the State of Delaware (each, an "Associates Trust," and
collectively, the "Associates Trusts"), may severally offer preferred securities
(the "Preferred Securities") representing undivided beneficial ownership
interests in the assets of such Associates Trust. The Company will be the owner
of the common securities (the "Common Securities," and, together with the
Preferred Securities, the "Trust Securities") of each Associates Trust. The
payment of periodic cash distributions ("Distributions") with respect to
Preferred Securities of each of the Associates Trusts out of monies held by the
Property Trustee (as defined herein) of such Associates Trusts and payments on
liquidation of such Associates Trust and on redemption of Preferred Securities
of such Associates Trust, will be guaranteed by the Company as and to the extent
described herein (each, a "Guarantee"). See "Description of Guarantees." The
Company's obligation under each Guarantee is an unsecured obligation of the
Company and will rank subordinate and junior in right of payment to all Senior
Indebtedness (as defined herein) and Subordinated Indebtedness (as defined
herein) of the Company. Except as otherwise provided in the applicable
Prospectus Supplement, (i) concurrently with the issuance by an Associates Trust
of its Preferred Securities, such Associates Trust will invest the proceeds
thereof and any contributions made in respect of the Common Securities in a
corresponding series of the Company's Junior Subordinated Debt Securities (the
"Corresponding Junior Subordinated Debt Securities") with terms directly
corresponding to the terms of that Associates Trust's Preferred Securities, (ii)
the Corresponding Junior Subordinated Debt Securities will be the sole assets of
each Associates Trust and (iii) payments under the Corresponding Junior
Subordinated Debt Securities will be the only revenue of each Associates Trust.
Unless otherwise specified in an applicable Prospectus Supplement, the Company
may redeem the Corresponding Junior Subordinated Debt Securities (and cause the
redemption of Trust Securities) or may dissolve each Associates Trust and, after
satisfaction of creditors of such Associates Trusts as provided by applicable
law, cause the Corresponding Junior Subordinated Debt Securities to be
distributed to the holders of Preferred Securities in liquidation of their
interests in the applicable Associates Trust. See "Description of Preferred
Securities -- Liquidation Distribution upon Dissolution."
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
This Prospectus may not be used to consummate sales of Securities
unless accompanied by a Prospectus Supplement.
The date of this Prospectus is September , 1998.
<PAGE> 3
The specific terms of the Securities in respect of which this Prospectus is
being delivered will be set forth in the accompanying Prospectus Supplement or
Supplements, together with the terms of the offering of any such Securities, the
initial price thereof and the net proceeds from the sale thereof. The Prospectus
Supplement will also set forth with respect to the particular Securities
offered, certain terms thereof, including, where applicable, (i) in the case of
Debt Securities, the designation, aggregate principal amount, authorized
denominations and priority thereof, the currency, currencies or currency units
for which the Debt Securities may be purchased and the currency, currencies or
currency units in which the principal of and any interest on such Debt
Securities may be payable, the date on which such Debt Securities will mature,
the rate per annum at which such Debt Securities will bear interest, if any, or
the method of determination of such rate, the dates on which such interest, if
any, will be payable, the deferral of payment of any interest, any conversion or
exchange provisions, any redemption or sinking fund provisions and any
additional or other rights, preferences, privileges, limitations and
restrictions relating to such Debt Securities, (ii) in the case of Preferred
Stock, the specific designation, number of shares or fractional interests
therein and any dividend, liquidation, redemption, exchange, voting, conversion
and other rights, preferences and privileges, (iii) in the case of Class A
Common Stock, the aggregate number of shares offered and market price and
dividend information, (iv) in the case of the Warrants, the Debt Securities, the
Preferred Stock or Class A Common Stock, respectively, for which each such
Warrant is exercisable and the exercise price, duration, detachability and other
terms of the Warrants, (v) in the case of Stock Purchase Contracts, the
designation and number of shares of Class A Common Stock issuable thereunder,
the purchase price of the Class A Common Stock, the date or dates on which the
Class A Common Stock is required to be purchased by the holders of the Stock
Purchase Contracts and any periodic payments required to be made by the Company
to the holders of the Stock Purchase Contracts or vice versa, (vi) in the case
of Stock Purchase Units, the specific terms of the Stock Purchase Contracts and
any Debt Securities or debt obligations of third parties or Preferred Securities
of an Associates Trust securing the holders' obligation to purchase the Class A
Common Stock under the Stock Purchase Contracts, the ability of a holder of such
Stock Purchase Units to settle early the underlying Stock Purchase Contract by
delivering cash in exchange for the underlying collateral and, if applicable,
whether the Company will issue to such holder a Prepaid Security (as defined
herein) as a result of such early settlement and the specific terms of the
Prepaid Security and (vii) in the case of Preferred Securities of an Associates
Trust, the specific designation, number of securities, liquidation amount per
security, any listing on a securities exchange, distribution rate (or method of
calculation thereof), dates on which distributions shall be payable and dates
from which distributions shall accrue, voting rights, if any, terms for any
conversion or exchange into other securities, any redemption or sinking fund
provisions, any other rights, preferences, privileges, limitations or
restrictions relating to the Preferred Securities and the terms upon which the
proceeds of the sale of the Preferred Securities shall be used to purchase a
specific series of Corresponding Junior Subordinated Debt Securities of the
Company. The Prospectus Supplement will also contain information, where
applicable, about certain United States Federal income tax considerations
relating to the Securities described in the Prospectus Supplement. All or a
portion of the Securities may be issued in permanent or temporary global form
(each a "Global Security").
The aggregate initial offering price of all Securities shall not exceed
$7,500,000,000 (or, if any Securities are issued (i) with any initial offering
price denominated in a foreign currency or currency unit, such amount as shall
result in aggregate gross proceeds equivalent to $7,500,000,000 at the time of
initial offering or (ii) at an original issue discount, such greater amount as
shall result in aggregate gross proceeds of $7,500,000,000).
The Securities may be sold through underwriters or dealers or may be sold
by the Company and/or each Associates Trust directly or through agents
designated from time to time. The names of any underwriters or agents involved
in the sale of the Securities in respect to which this Prospectus is being
delivered and their compensation will be set forth in the Prospectus Supplement.
2
<PAGE> 4
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS OR
THE ACCOMPANYING PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY OR ANY UNDERWRITER. THIS PROSPECTUS AND THE ACCOMPANYING PROSPECTUS
SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO
BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO
WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH JURISDICTION. NEITHER THE
DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE
HEREUNDER OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE
HEREOF.
------------------------
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Such reports and other information can be
inspected and copied at the offices of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549; 500 West Madison Street, Chicago, Illinois 60661; and
Seven World Trade Center, 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. In addition, the
Commission maintains a Website that contains reports and other information
regarding registrants that file electronically, such as the Company. The address
of the Commission's Website is http://www.sec.gov. The Company's Class A Common
Stock is listed on the New York Stock Exchange (the "Exchange"), and the
aforementioned reports and other information concerning the Company may be
inspected at the offices of the Exchange, 20 Broad Street, New York, New York
10005.
The Company and the Associates Trusts have filed with the Commission a
Registration Statement on Form S-3 (together with all amendments and exhibits
thereto, the "Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the securities offered hereby.
This Prospectus does not contain all the information set forth in the
Registration Statement, certain portions of which have been omitted as permitted
by the rules and regulations of the Commission. For further information with
respect to the Company and the securities offered hereby, reference is made to
the Registration Statement and the exhibits and the financial statements, notes
and schedules filed as a part thereof or incorporated by reference therein,
which may be inspected at the public reference facilities of the Commission at
the addresses set forth above. Statements made in this Prospectus concerning the
contents of any documents referred to herein are not necessarily complete, and
in each instance are qualified in all respects by reference to the copy of such
document filed as an exhibit to the Registration Statement.
No separate financial statements of the Associates Trusts have been
included herein. The Company and the Associates Trusts do not consider that such
financial statements would be material to holders of the Preferred Securities
because (i) all of the voting securities of the Associates Trusts will be owned,
directly or indirectly, by the Company, a reporting company under the Exchange
Act, (ii) each Associates Trust is a newly formed special purpose entity, has no
operating history or independent operations and is not engaged in and does not
propose to engage in any activity other than holding as trust assets the
Corresponding Junior Subordinated Debt Securities of the Company and issuing the
Trust Securities and (iii) the Company's obligations described herein and in any
accompanying Prospectus Supplement, through the applicable Guarantee Agreement
(as defined herein), the applicable Trust Agreement (as defined herein), the
Corresponding Junior Subordinated Debt Securities, the Junior Subordinated
Indenture and any supplemental indentures thereto, taken together, constitute a
full, irrevocable and unconditional guarantee by the Company of payments due on
the Preferred Securities. No single document standing alone or operating in
conjunction with fewer than all of the other documents constitutes such
guarantee. It is only the combined operation of these documents that has the
effect of providing a full, irrevocable and unconditional guarantee of the
Associates Trust's obligations under the Preferred Securities. See "The
Associates Trusts," "Description of Preferred Securities," "Description of the
Debt Securities -- Subordinated Debt Securities and Junior Subordinated Debt
Securities -- Subordination" and "Description of Guarantees."
3
<PAGE> 5
DOCUMENTS INCORPORATED BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1997, its Quarterly Reports on Form 10-Q for the periods ended March 31,
1998 and June 30, 1998, its Current Reports on Form 8-K dated January 20, 1998,
February 10, 1998, February 12, 1998, March 2, 1998, March 3, 1998, March 19,
1998, April 8, 1998, April 13, 1998, April 14, 1998, April 20, 1998, June 18,
1998, July 14, 1998, August 11, 1998 and August 31, 1998 and the description of
its Class A Common Stock in its Registration Statement on Form 8-A dated
February 23, 1996, filed with the Commission pursuant to the Exchange Act, are
hereby incorporated by reference. All documents filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and
prior to the termination of the offering of the Securities offered hereby shall
be deemed to be incorporated by reference herein and to be a part hereof from
the date of filing such documents.
The Company will furnish without charge to each person to whom this
Prospectus is delivered, upon written or oral request by such person, a copy of
any or all of the documents described above, other than exhibits to such
documents. Requests should be addressed to: Associates First Capital
Corporation, P.O. Box 660237, Dallas, TX 75266-0237, Attention: Secretary (tel.
972-652-4000).
------------------------
Unless otherwise indicated, currency amounts in this Prospectus and any
Prospectus Supplement are stated in United States dollars ("$", "dollars" or
"U.S.$").
4
<PAGE> 6
THE COMPANY
Associates First Capital Corporation, a Delaware corporation (the
"Company"), is a leading, diversified consumer and commercial finance
organization which provides finance, leasing and related services to individual
consumers and businesses in the United States and internationally. Associates
Corporation of North America ("ACONA"), a wholly-owned subsidiary, is the
principal U.S.-based operating subsidiary of the Company. Unless the context
otherwise requires, reference to the Company includes the Company and all its
subsidiaries.
In October 1989, Ford Motor Company ("Ford") acquired the Company. In May
1996, the Company made an initial public offering of 67 million shares of its
Class A Common Stock, representing a 19.3% interest in the Company. In
connection with the initial public offering, the Company issued 23,603,669
shares of Class A Common Stock to Ford in consideration for the Company's
acquisition of the Company's foreign operations, which the Company had
previously managed but not owned. In addition, the Company recharacterized the
remaining shares of common stock Ford owned into 255,881,180 shares of Class B
Common Stock, par value $.01 per share (the "Class B Common Stock") (the Class A
Common Stock and the Class B Common Stock is collectively referred to herein as
the "Common Stock"). Ford continued to own this controlling interest in the
Company's Common Stock until April 1998, when Ford converted its holdings of
Class B Common Stock into Class A Common Stock and distributed its entire
interest in the Company in the form of a dividend to its stockholders (the "Spin
Off"). Accordingly, the Company is no longer a subsidiary of Ford.
The Company's consumer finance operations consist of a variety of
specialized consumer financing products and services, including home equity
lending, personal lending, retail sales finance and credit cards. The Company's
commercial finance operations primarily provide retail financing, leasing and
wholesale financing for heavy-duty and medium-duty trucks and truck trailers,
construction, material handling and other industrial and communications
equipment, manufactured housing, recreational vehicles and auto fleet leasing
and other commercial products and services. As part of its consumer finance and
commercial finance activities, the Company makes available to its customers
credit-related and other insurance products.
At December 31, 1997, the Company had aggregate net finance receivables of
$55.2 billion, approximately 91% of which were dispersed across the United
States and the remaining 9% of which were in foreign countries. The Company's
operations outside the United States are conducted principally in Canada and
Japan, but also include operations in the United Kingdom, Puerto Rico, Mexico,
Costa Rica and Taiwan.
At December 31, 1997, the Company had 2,265 offices worldwide. The
principal executive offices of the Company are located at 250 East Carpenter
Freeway, Irving, TX 75062-2729, and its mailing address is P.O. Box 660237,
Dallas, TX 75266-0237 (tel. 972-652-4000).
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the historical ratios of earnings to fixed
charges of the Company for the periods indicated:
<TABLE>
<CAPTION>
SIX MONTHS ENDED
YEAR ENDED DECEMBER 31 JUNE 30,
- -------------------------------- ----------------
1993 1994 1995 1996 1997 1998
- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
1.57 1.61 1.55 1.57 1.59 1.59
</TABLE>
For purposes of computing the ratio of earnings to fixed charges, the term
"earnings" represents earnings before provision for income taxes and cumulative
effect of changes in accounting principles, plus fixed charges. "Fixed charges"
represent interest expense and a portion of rentals representative of an
implicit interest factor for such rentals.
5
<PAGE> 7
THE ASSOCIATES TRUSTS
Each Associates Trust is a statutory business trust created under Delaware
law pursuant to (i) a trust agreement executed by the Company, as depositor of
such Associates Trust, and the Issuer Trustees (as defined herein) of such
Associates Trust and (ii) a certificate of trust filed with the Delaware
Secretary of State. Each trust agreement will be amended and restated in its
entirety (each, as so amended and restated, a "Trust Agreement") substantially
in the form filed as an exhibit to the Registration Statement of which this
Prospectus forms a part. Each Trust Agreement will be qualified as an indenture
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
Each Associates Trust exists for the exclusive purposes of (i) issuing and
selling its Trust Securities, (ii) using the proceeds from the sale of such
Trust Securities to acquire a series of Corresponding Junior Subordinated Debt
Securities issued by the Company and (iii) engaging in only those other
activities necessary, convenient or incidental thereto. Each of the Associates
Trusts is a separate legal entity, and the assets of one are not available to
satisfy the obligations of any of the others.
All of the Common Securities of each Associates Trust will be owned by the
Company. The Common Securities of an Associates Trust will rank pari passu, and
payments will be made thereon pro rata, with the Preferred Securities of such
Associates Trust, except that upon the occurrence and continuance of a Trust
Event of Default (as defined herein) resulting from an Event of Default with
respect to Corresponding Junior Subordinated Debt Securities, the rights of the
Company as holder of the Common Securities to payment in respect of
Distributions and payments upon liquidation, redemption or otherwise will be
subordinated to the rights of the holders of the Preferred Securities of such
Associates Trust. See "Description of Preferred Securities -- Subordination of
Common Securities." The Company will acquire Common Securities in an aggregate
liquidation amount equal to not less than 3% of the total capital of each
Associates Trust.
Unless otherwise specified in the applicable Prospectus Supplement, each
Associates Trust has a term of approximately 50 years, but may dissolve earlier
as provided in the applicable Trust Agreement. Each Associates Trust's business
and affairs are conducted by its trustees, each appointed by the Company as
holder of the Common Securities. Unless otherwise specified in the applicable
Prospectus Supplement, the trustees for each Associates Trust will be The Chase
Manhattan Bank, as the Property Trustee (the "Property Trustee"), Chase
Manhattan Bank Delaware, as the Delaware Trustee (the "Delaware Trustee"), and
two individual trustees (the "Administrative Trustees") who are employees or
officers of or affiliated with the Company (collectively, the "Issuer
Trustees"). The Chase Manhattan Bank, as Property Trustee, will act as sole
indenture trustee under each Trust Agreement for purposes of compliance with the
Trust Indenture Act. Unless otherwise specified in the applicable Prospectus
Supplement, The Chase Manhattan Bank will act as trustee under the Guarantee
Agreement and the Junior Subordinated Indenture (as defined herein). See
"Description of Guarantees" and "Description of Debt Securities -- Subordinated
Debt Securities and Junior Subordinated Debt Securities -- Subordination." The
holder of the Common Securities of an Associates Trust, or the holders of a
majority in liquidation amount of the outstanding related Preferred Securities
if a Trust Event of Default resulting from an Event of Default with respect to
Corresponding Junior Subordinated Debt Securities for such Associates Trust has
occurred and is continuing, will be entitled to appoint, remove or replace the
Property Trustee and/or the Delaware Trustee for such Associates Trust. In no
event will the holders of the Preferred Securities have the right to vote to
appoint, remove or replace the Administrative Trustees; such voting rights are
vested exclusively in the holder of the Common Securities. The duties and
obligations of each Issuer Trustee are governed by the applicable Trust
Agreement. Pursuant to the applicable Junior Subordinated Indenture, the
Company, as borrower, will pay all fees and expenses related to each Associates
Trust and the offering of the Preferred Securities and will pay, directly or
indirectly, all ongoing costs, expenses and liabilities of each Associates
Trust.
The principal executive office of each Associates Trust is 250 East
Carpenter Freeway, Irving, Texas 75062 and its telephone number is (972)
652-4000.
6
<PAGE> 8
APPLICATION OF PROCEEDS
Unless otherwise specified in the Prospectus Supplement which accompanies
this Prospectus, the net proceeds from the sale of the Securities (other than
Trust Securities) will be added to the general funds of the Company to be
applied to fund investments in, or extensions of credit to, its subsidiaries; to
reduce other outstanding indebtedness; to fund acquisitions by the Company and
its subsidiaries of other companies or finance receivables; or for such other
purposes as may be set forth in the Prospectus Supplement. Pending such
application, such net proceeds may be temporarily invested or applied to the
reduction of short-term debt. The Company expects from time to time to continue
to incur short-term and long-term debt and to effect other financings, the
amounts of which cannot now be determined. Each Associates Trust will use all
proceeds received from the sale of its Trust Securities to purchase the
applicable Corresponding Junior Subordinated Debt Securities.
DESCRIPTION OF THE DEBT SECURITIES
The following description sets forth certain general terms and provisions
of the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities offered by any Prospectus Supplement and
the extent, if any, to which such general provisions may apply to the Debt
Securities so offered will be described in the Prospectus Supplement relating to
such Debt Securities.
GENERAL
The Debt Securities will constitute senior, subordinated or junior
subordinated debt of the Company. The Debt Securities will be issued under one
or more separate indentures described below for Senior Debt Securities (each, a
"Senior Indenture"), Subordinated Debt Securities (each, a "Subordinated
Indenture") or Junior Subordinated Debt Securities (each, a "Junior Subordinated
Indenture"), in each case between the Company and a banking institution
organized under the laws of the United States of America or of a State thereof
(each, an "Indenture Trustee"). The Senior Indentures, the Subordinated
Indentures and the Junior Subordinated Indentures are hereinafter collectively
referred to as the "Indentures." Certain terms and provisions referred to in
this Prospectus or an applicable Prospectus Supplement as being part of the
Junior Subordinated Indenture may instead be contained in the Corresponding
Junior Subordinated Debt Security, a form of which will be filed with the
Commission. The following summary of certain provisions of the Indentures does
not purport to be complete and is qualified in its entirety by reference to the
applicable Indenture, which is filed as an exhibit to the Registration
Statement. All article and section references appearing herein are to articles
and sections of the applicable Indenture, and all capitalized terms have the
meanings specified in such Indenture.
The Company is principally a holding company whose primary sources of funds
are cash received from subsidiaries in the form of dividends and other
intercompany transfers of funds. Dividend distributions to the Company from
ACONA are currently subject to a restriction contained in one public issue of
debt maturing on March 15, 1999, which generally limits payments of cash
dividends on ACONA's common stock in any year to not more than 50% of
consolidated net earnings for such year, subject to certain exceptions. As a
holding company, the rights of any creditors of the Company to participate in
the assets of any subsidiary upon the latter's liquidation or recapitalization
will be subject to the prior claims of the subsidiary's creditors, except to the
extent that the Company may itself be a creditor with recognized claims against
the subsidiary. Accordingly, all Debt Securities will effectively be
subordinated to all existing and future obligations of the Company's
subsidiaries. At June 30, 1998, such liabilities of the Company's subsidiaries
aggregated $51.9 billion, representing 95.1% of the aggregate indebtedness of
the Company and its consolidated subsidiaries. In addition, as of June 30, 1998,
approximately $5.6 billion of existing indebtedness of the Company would have
ranked pari passu with the Senior Debt Securities and senior to the Subordinated
Debt Securities and the Junior Subordinated Debt Securities and there was no
existing indebtedness of the Company that would have ranked pari passu with the
Subordinated Debt Securities and senior to the Junior Subordinated Debt
Securities.
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None of the Indentures limits the amount of Debt Securities which may be
issued thereunder, and each Indenture provides that Debt Securities may be
issued thereunder up to the aggregate principal amount authorized from time to
time by the Company and may be denominated in any currency or currency unit
designated by the Company. The Indentures do not restrict the amount of debt
that may be incurred by the Company or any subsidiary. The Indentures do not
contain any covenant or other provision that is specifically intended to afford
any Holder special protection in the event of highly leveraged transactions or
any other transactions resulting in a decline in the ratings or credit quality
of the Company. Reference is made to the Prospectus Supplement which accompanies
this Prospectus for the following terms and other information to the extent
applicable with respect to the Debt Securities being offered thereby: (i) the
designation, aggregate principal amount, authorized denominations and priority
of such Debt Securities; (ii) the percentage of the principal amount at which
such Debt Securities will be issued; (iii) the currency, currencies or currency
units for which the Debt Securities may be purchased and the currency,
currencies or currency units in which the principal of and any interest on such
Debt Securities may be payable; (iv) the date on which such Debt Securities will
mature and any provisions giving the Company the right to extend or shorten the
maturity; (v) the rate per annum at which such Debt Securities will bear
interest, if any, or the method of determination of such rate; (vi) the dates on
which such interest, if any, will be payable; (vii) any provision relating to
the deferral of payment of any interest; (viii) any conversion or exchange
provisions; (ix) whether such Debt 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 a
depositary (the "Depositary") for such Global Security or Securities; (x) any
redemption or sinking fund provisions; and (xi) any additional or other rights,
preferences, privileges, limitations and restrictions relating to such Debt
Securities.
If any of the Debt Securities are sold for foreign currencies or foreign
currency units or if the principal of or any interest on any series of Debt
Securities is payable in foreign currencies or foreign currency units, the
restrictions, elections, tax consequences, specific terms and other information
with respect to such issue of Securities and such currencies or currency units
will be set forth in the Prospectus Supplement relating thereto.
The Debt Securities may be issued in fully registered form without coupons
("Fully Registered Securities"), a form registered as to principal only with
coupons or bearer form with coupons. Unless otherwise specified in the
applicable Prospectus Supplement, the Debt Securities will be only Fully
Registered Securities (sec.sec.3.01, 3.02). In addition, Debt Securities of a
series may be issuable in the form of one or more Global Securities, which will
be denominated in an amount equal to all or a portion of the aggregate principal
amount of such Debt Securities (sec.2.04). See "-- Global Debt Securities"
below.
One or more series of Debt Securities may be sold at a substantial discount
below their stated principal amount, bearing no interest or interest at a rate
which at the time of issuance is below market rates. United States Federal
income tax consequences and special considerations applicable to any such series
will be described in the Prospectus Supplement relating thereto.
CONVERSION AND EXCHANGE
The terms, if any, on which Debt Securities of any series will be
convertible into or exchangeable for Class A Common Stock, Preferred Stock,
Preferred Securities or other securities, property, cash or obligations or a
combination of any of the foregoing, will be summarized in the Prospectus
Supplement relating to such series. Such terms may include provisions for
conversion or exchange, either on a mandatory basis, at the option of the holder
or at the option of the Company. The number of shares of Class A Common Stock,
Preferred Stock, Preferred Securities or other securities or the property, cash
or obligations to be received by the holders of such Debt Securities upon
conversion or exchange, will be calculated according to the factors and at such
time as are summarized in the related Prospectus Supplement.
GLOBAL DEBT SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities that will be deposited with, or on behalf
of, the Depositary identified in the Prospectus Supplement
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relating to such series. Unless and until it is exchanged in whole or in part
for Debt Securities in individually certificated form, a Global Security may not
be transferred except as a whole to a nominee of the Depositary for such Global
Security, or by a nominee of such Depositary to such Depositary, or to a
successor of such Depositary or a nominee of such successor (sec.2.04).
For a description of the depositary arrangements, see "Book-Entry
Issuance." Any additional terms of the depositary arrangement with respect to
any series of Debt Securities and the rights of and limitations on owners of
beneficial interests in a Global Security representing all or a portion of a
series of Debt Securities may be described in the Prospectus Supplement relating
to such series.
CERTAIN RESTRICTIVE PROVISIONS
Except as described under "-- Certain Provisions Relating to Corresponding
Junior Subordinated Debt Securities -- Restrictions on Certain Payments," none
of the Indentures limits the amount of other debt which may be issued by the
Company or the amount of dividends or other payments which may be paid with
respect to, or the redemption or acquisition of, its equity securities by the
Company or its subsidiaries. However, each Indenture contains a covenant that
neither the Company nor any Finance Subsidiary or Insurance Subsidiary will
create or incur any mortgage, pledge, or charge of any kind on any of its
properties unless effective provision has been made for securing payments on the
Debt Securities equally and ratably with the obligations so secured, except for:
intercompany mortgages or pledges from subsidiary to parent corporation or to
any other Finance Subsidiary or Insurance Subsidiary; purchase money liens or
leases; acquisitions of subsidiaries, the physical properties or assets of which
are subject to liens; liens created in the ordinary course of business by
subsidiaries for money borrowed if such subsidiaries operate in foreign
countries or prior to becoming a subsidiary had borrowed on a secured basis;
sale and leaseback arrangements upon any real property; renewals or refundings
of any of the foregoing; and certain other minor exceptions. Notwithstanding the
foregoing, the Company or any such subsidiary may incur mortgages, pledges,
encumbrances, liens or charges on indebtedness that would be otherwise
prohibited if the aggregate amount of indebtedness secured by such mortgages,
pledges, encumbrances, liens or charges, together with all other indebtedness
of, or guaranteed by, the Company and any such subsidiaries existing at such
time and secured by mortgages, pledges, encumbrances, liens or charges not
expressly excepted, does not at the time exceed 15% of the Company's
consolidated net worth. Each Indenture also contains a covenant restricting
certain transactions by the Company or its subsidiaries with any Controlling
Person or Controlling Person Subsidiary (sec.6.02).
MODIFICATION OF INDENTURES
From time to time, the Company and the applicable Indenture Trustee may,
without the consent of the holders of any series of Debt Securities, amend or
supplement the relevant Indenture for specified purposes, including, among other
things, curing ambiguities, defects or inconsistencies (provided that any such
action does not materially adversely affect the interest of the holders of any
series of Debt Securities or, in the case of Corresponding Junior Subordinated
Debt Securities, the holders of the related Preferred Securities as long as they
remain outstanding). Except as otherwise provided below, pursuant to each
Indenture, the rights and obligations of the Company and the rights of the
Holders may be modified with respect to one or more series of Debt Securities
issued under such Indenture with the consent of the Holders of not less than
66 2/3% in principal amount of the Outstanding Debt Securities of each such
series affected by the modification or amendment. No modification of the terms
of payment of principal or interest, and no modification reducing the percentage
required for modification is effective against any Holder without his consent.
No modification of the Senior Indentures subordinating the indebtedness
evidenced by any series of Senior Debt Securities issued thereunder to any other
indebtedness of the Company is effective against any Holder of a Senior Debt
Security issued thereunder without his consent, and no modification of the
Subordinated Indentures or the Junior Subordinated Indentures subordinating the
indebtedness evidenced by any series of Subordinated Debt Securities or Junior
Subordinated Debt Securities, as applicable, issued thereunder to any
indebtedness of the Company other than, in the case of Subordinated Debt
Securities, Senior Indebtedness or, in the case of Junior Subordinated Debt
Securities, Senior Indebtedness and/or Subordinated Indebtedness is effective
against any Holder of Subordinated Debt Securities or Junior Subordinated Debt
Securities, as applicable, without his consent. In addition, in the case of
Corresponding Junior Subordinated Debt Securities, so long as any of the related
Preferred Securities remain outstanding, no modification of the applicable
Junior
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Subordinated Indenture may be made that adversely affects the holders of such
Preferred Securities in any material respect, and no termination of such Junior
Subordinated Indenture may occur, and no waiver of any Event of Default with
respect to such Corresponding Junior Subordinated Debt Securities or compliance
with any covenant under the Junior Subordinated Indenture may be effective,
without the prior consent of not less than 66 2/3% (or, in the case of a waiver
of an Event of Default, a majority) of the aggregate liquidation amount of such
related Preferred Securities, provided, that where consent under the applicable
Junior Subordinated Indenture is not effective against any Holder without his
consent, no such consent shall be given by the Property Trustee without the
prior consent of each holder of related Preferred Securities. For the purpose of
these provisions, a holder of an unexpired Warrant to purchase Debt Securities
shall be deemed to be the Holder of the principal amount of Debt Securities
issuable upon exercise of such Warrant (sec.sec.6.03, 12.01). See "-- Certain
Provisions Relating to Corresponding Junior Subordinated Debt Securities."
EVENTS OF DEFAULT
Each Indenture provides that the following are Events of Default with
respect to any series of Debt Securities issued thereunder: default in the
payment of the principal of any Debt Security of such series when and as the
same shall be due and payable; default in making a sinking fund payment, if any,
when and as the same shall be due and payable by the terms of the Debt
Securities of such series; default for 30 days in the payment of any installment
of interest on any Debt Security of such series; default for 60 days after
notice in the performance of any other covenant in respect of the Debt
Securities of such series contained in the Indenture; certain events of
bankruptcy, insolvency or reorganization, or court appointment of a receiver,
liquidator or trustee of the Company or its property; default for 30 days in the
payment of any installment of interest on any evidence of indebtedness
(including any other series of Debt Securities issued under the same Indenture)
issued, assumed or guaranteed by the Company or default in the payment of any
principal of any such evidence of indebtedness; and any other Event of Default
provided in the applicable Board Resolution or supplemental indenture under
which such series of Debt Securities is issued (sec.8.01). An Event of Default
with respect to a particular series of Debt Securities issued under an Indenture
does not necessarily constitute an Event of Default with respect to any other
series of Debt Securities issued under such Indenture. The appropriate Indenture
Trustee may withhold notice to the Holders of any series of Debt Securities of
any default with respect to such series (except in the payment of principal or
interest) if it considers such withholding in the interests of such Holders.
If an Event of Default with respect to any series of Debt Securities shall
have occurred and be continuing, the appropriate Indenture Trustee or the
Holders of not less than 25% in aggregate principal amount of the Debt
Securities of such series may declare the principal, or in the case of
discounted Debt Securities, such portion thereof as may be described in the
Prospectus Supplement accompanying this Prospectus, of all the Debt Securities
of such series to be due and payable immediately, and, in the case of
Corresponding Junior Subordinated Debt Securities, should the Indenture Trustee
under the Junior Subordinated Indenture or such holders of such Corresponding
Junior Subordinated Debt Securities fail to make such declaration, the holders
of at least 25% in aggregate liquidation preference of the related Preferred
Securities shall have such right (sec.8.01). In certain circumstances, an Event
of Default with respect to the Debt Securities of a series (except defaults in
the payment of principal, premium, if any, or interest, if any), may be waived
by the Holders of a majority in aggregate principal amount of the Debt
Securities of such series (sec.8.01). In the case of Corresponding Junior
Subordinated Debt Securities of a series, should the Holders thereof fail to
waive such Event of Default, the holders of a majority in aggregate liquidation
amount of the related Preferred Securities shall have such right.
If an Event of Default with respect to any series of Corresponding Junior
Subordinated Debt Securities shall have occurred and be continuing, the Property
Trustee will have the right to declare the principal, or in the case of
discounted Corresponding Junior Subordinated Debt Securities, such portion
thereof as may be described in the applicable Prospectus Supplement, of all the
Debt Securities of such series to be due and payable immediately and to enforce
its other rights as a creditor with respect to such Corresponding Junior
Subordinated Debt Securities.
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Within four months after the close of each fiscal year, the Company must
file with each Indenture Trustee a certificate, signed by specified officers,
stating whether or not such officers have knowledge of any default, and, if so,
specifying each such default and the nature thereof (sec.6.02).
Subject to provisions relating to its duties in case of default, an
Indenture Trustee shall be under no obligation to exercise any of its rights or
powers under the applicable Indenture at the request, order or direction of any
Holders, unless such Holders shall have offered to such Indenture Trustee
reasonable indemnity (sec.9.03). Subject to such provisions for indemnification,
the Holders of a majority in principal amount of the Debt Securities of any
series may direct the time, method and place of conducting any proceeding for
any remedy available to the appropriate Indenture Trustee, or exercising any
trust or power conferred upon such Indenture Trustee, with respect to the Debt
Securities of such series (sec.8.06).
See "-- Certain Provisions Relating to Corresponding Junior Subordinated
Debt Securities."
PAYMENT AND TRANSFER
Principal of, premium, if any, and interest, if any, on Fully Registered
Securities are to be payable at the Corporate Trust Office of the Indenture
Trustee under the applicable Indenture or any other office maintained by the
Company for such purposes, provided that payment of interest, if any, will be
made, unless otherwise provided in the applicable Prospectus Supplement, by
check mailed to the persons in whose names such Securities are registered at the
close of business on the day or days specified in the Prospectus Supplement
accompanying this Prospectus (sec.sec.3.08, 3.11). The principal of, premium, if
any, and interest, if any, on Debt Securities in other forms will be payable in
such manner and at such place or places as may be designated by the Company and
specified in the applicable Prospectus Supplement (sec.3.11).
Fully Registered Securities may be transferred or exchanged at the
Corporate Trust Office of the Indenture Trustee under the applicable Indenture
or at any other office or agency maintained by the Company for such purposes,
subject to the limitations in the applicable Indenture, without the payment of
any service charge except for any tax or governmental charge incidental thereto.
Provisions with respect to the transfer and exchange of Debt Securities in other
forms will be set forth in the applicable Prospectus Supplement (sec.3.05).
SENIOR DEBT SECURITIES -- SENIOR INDEBTEDNESS
The Senior Debt Securities will constitute part of the Senior Indebtedness
of the Company and will rank pari passu with all outstanding senior debt.
The term "Senior Indebtedness" is defined to mean all Indebtedness of the
Company, unless, in the instrument creating or evidencing the same or pursuant
to which the same is outstanding, it is provided that such obligations are not
superior in right of payment to Subordinated Indebtedness or Junior Subordinated
Indebtedness or to other Indebtedness of the Company which is pari passu with,
or subordinated to, Subordinated Indebtedness or Junior Subordinated
Indebtedness. The term, "Indebtedness" is defined to mean, with respect to a
Person, (i) the principal of and premium, if any, and interest, if any, on, (A)
indebtedness of such Person for money borrowed and (B) indebtedness evidenced by
securities, notes, debentures, bonds or other similar instruments issued by such
Person; (ii) all capital lease obligations of such Person; (iii) all obligations
of such Person issued or assumed as the deferred purchase price of property, all
conditional sale obligations of such Person and all obligations of such Person
under any conditional sale or title retention agreement (but excluding trade
accounts payable and accrued liabilities in the ordinary course of business);
(iv) all obligations, contingent or otherwise, of such Person in respect of any
letters of credit, banker's acceptance, security purchase facilities or similar
credit transactions; (v) all obligations in respect of interest rate swap, cap,
floor, collar or other agreements, interest rate future or option contracts,
currency swap agreements, currency future or option contracts and other similar
agreements; and (vi) all obligations of the type referred to in clauses (i)
through (v) of others for the payment of which such Person is responsible or
liable as obligor, guarantor or otherwise (sec. 1.01).
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SUBORDINATED DEBT SECURITIES AND JUNIOR SUBORDINATED DEBT
SECURITIES -- SUBORDINATION
The Subordinated Debt Securities will constitute part of the Subordinated
Indebtedness of the Company and will be subordinate and junior in right of
payment in all respects to all Senior Indebtedness of the Company and senior in
right of payment in all respects to all Junior Subordinated Indebtedness of the
Company, in each case whether outstanding at the date of the Subordinated
Indenture or incurred after such date.
The Junior Subordinated Debt Securities will constitute part of the Junior
Subordinated Indebtedness of the Company and will be subordinate and junior in
right of payment in all respects to all Senior Indebtedness and Subordinated
Indebtedness of the Company, in each case whether outstanding at the date of the
Junior Subordinated Indenture or incurred after such date.
"Subordinated Indebtedness" is defined to mean all Indebtedness of the
Company which is subordinate and junior in right of payment to Senior
Indebtedness, but does not include "Junior Subordinated Indebtedness," which is
defined to mean Indebtedness subordinate and junior in right of payment to
Subordinated Indebtedness and Senior Indebtedness (sec.1.01). At June 30, 1998,
Senior Indebtedness aggregated approximately $5.6 billion and there was no
Subordinated Indebtedness outstanding as of such date. The amount of additional
Senior Indebtedness and Subordinated Indebtedness which the Company may issue is
not subject to any limitation.
Upon any distribution of assets of the Company in connection with any
dissolution, winding up, liquidation or reorganization of the Company, the
holders of all Senior Indebtedness will first be entitled to receive payment in
full of principal of and premium, if any, and interest, if any, on such Senior
Indebtedness before the Holders of Subordinated Debt Securities are entitled to
receive any payment on Subordinated Debt Securities. In the event that any
Subordinated Debt Security is declared due and payable because of the occurrence
of an Event of Default, under circumstances when the provisions of the foregoing
sentence are not applicable, the Indenture Trustee under the Subordinated
Indenture or the Holders of Subordinated Debt Securities shall be entitled to
payment only after there shall first have been paid in full the Senior
Indebtedness outstanding at the time such Subordinated Debt Security so becomes
due and payable because of such Event of Default (Article Fifteen of the
Subordinated Indenture).
Similarly, upon any distribution of assets of the Company in connection
with any dissolution, winding up, liquidation or reorganization of the Company,
the holders of all Senior Indebtedness and Subordinated Indebtedness will first
be entitled to receive payment in full of principal of and premium, if any, and
interest, if any, on such Senior Indebtedness and Subordinated Indebtedness
before the Holders of Junior Subordinated Debt Securities are entitled to
receive any payment on Junior Subordinated Debt Securities. In the event that
any Junior Subordinated Debt Security is declared due and payable because of the
occurrence of an Event of Default, under circumstances when the provisions of
the foregoing sentence are not applicable, the Indenture Trustee under the
Junior Subordinated Indenture or the Holders of Junior Subordinated Debt
Securities shall be entitled to payment only after there shall first have been
paid in full the Senior Indebtedness and the Subordinated Indebtedness
outstanding at the time such Junior Subordinated Debt Security so becomes due
and payable because of such Event of Default (Article Fifteen of the Junior
Subordinated Indenture).
CERTAIN PROVISIONS RELATING TO CORRESPONDING JUNIOR SUBORDINATED DEBT SECURITIES
General. The Corresponding Junior Subordinated Debt Securities may be
issued in one or more series of Junior Subordinated Debt Securities under the
Junior Subordinated Indenture with terms corresponding to the terms of a series
of related Preferred Securities. Concurrently with the issuance of each
Associates Trust's Preferred Securities, such Associates Trust will invest the
proceeds thereof and the consideration paid by the Company for the Common
Securities in a series of Corresponding Junior Subordinated Debt Securities
issued by the Company to such Associates Trust. Each series of Corresponding
Junior Subordinated Debt Securities will be in the principal amount equal to the
aggregate stated Liquidation Amount of the related Preferred Securities and the
Common Securities of such Associates Trust and will rank pari passu with all
other series of Junior Subordinated Debt Securities. Holders of the related
Preferred Securities for a series of Corresponding Junior Subordinated Debt
Securities will have the rights in connection with modifications to the Junior
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Subordinated Indenture or upon occurrence of a Trust Event of Default relating
to Corresponding Junior Subordinated Debt Securities described under
"-- Modification of Indentures," "-- Events of Default," and "-- Enforcement of
Certain Rights by Holders of Preferred Securities," unless provided otherwise in
the Prospectus Supplement for such related Preferred Securities.
The Company will covenant, as to each series of Corresponding Junior
Subordinated Debt Securities, (i) to maintain, directly or indirectly, 100%
ownership of the Common Securities of the Associates Trust to which
Corresponding Junior Subordinated Debt Securities have been issued, provided
that certain successors which are permitted pursuant to the Junior Subordinated
Indenture may succeed to the Company's ownership of the Common Securities, (ii)
not to voluntarily dissolve, wind-up or liquidate any Associates Trust, except
(a) in connection with a distribution of Corresponding Junior Subordinated Debt
Securities to the holders of the Preferred Securities in liquidation of such
Associates Trust or (b) in connection with certain mergers, consolidations or
amalgamations permitted by the related Trust Agreement and (iii) to use its
reasonable efforts, consistent with the terms and provisions of the related
Trust Agreement, to cause such Associates Trust to remain classified as a
grantor trust and not as an association taxable as a corporation for United
States Federal income tax purposes. For additional covenants relating to payment
of certain expenses of the Associates Trusts see "Description of Preferred
Securities -- Payment of Expenses."
Option to Extend Interest Payment Date. If provided in the applicable
Prospectus Supplement, the Company shall have the right at any time and from
time to time during the term of any series of Corresponding Junior Subordinated
Debt Securities to defer payment of interest for such number of consecutive
interest payment periods as may be specified in the applicable Prospectus
Supplement (each, an "Extension Period"), subject to the terms, conditions and
covenants, if any, specified in such Prospectus Supplement, provided that such
Extension Period may not extend beyond the maturity date of such series of
Corresponding Junior Subordinated Debt Securities. Certain United States Federal
income tax consequences and special considerations applicable to any such
Corresponding Junior Subordinated Debt Securities will be described in the
applicable Prospectus Supplement.
Redemption. Unless otherwise indicated in the applicable Prospectus
Supplement, the Company may, at its option, redeem the Corresponding Junior
Subordinated Debt Securities of any series in whole at any time or in part from
time to time. Corresponding Junior Subordinated Debt Securities may be redeemed
in the denominations as set forth in the applicable Prospectus Supplement.
Except as otherwise specified in the applicable Prospectus Supplement, the
redemption price for any Corresponding Junior Subordinated Debt Security so
redeemed shall equal any accrued and unpaid interest thereon to the redemption
date, plus the principal amount thereof. Unless otherwise specified in the
applicable Prospectus Supplement, the Company may not redeem a series of
Corresponding Junior Subordinated Debt Securities in part unless all accrued and
unpaid interest has been paid in full on all outstanding Corresponding Junior
Subordinated Debt Securities of such series for all interest periods terminating
on or prior to the Redemption Date.
Except as otherwise specified in the applicable Prospectus Supplement, if a
Junior Subordinated Debt Security Tax Event (as defined below) or an Investment
Company Event (as defined below) in respect of an Associates Trust shall occur
and be continuing, the Company may, at its option, redeem the Corresponding
Junior Subordinated Debt Securities held by such Associates Trust at any time
within 90 days of the occurrence of such Junior Subordinated Debt Security Tax
Event or Investment Company Event, in whole but not in part, subject to the
provisions of the Junior Subordinated Indenture. The redemption price for any
such Corresponding Junior Subordinated Debt Securities shall be equal to 100% of
the principal amount of such Corresponding Junior Subordinated Debt Securities
then outstanding plus accrued and unpaid interest to the date fixed for
redemption. For so long as the applicable Associates Trust is the holder of all
such outstanding Corresponding Junior Subordinated Debt Securities, the proceeds
of any such redemption will be used by the Associates Trust to redeem the
corresponding Trust Securities in accordance with their terms.
"Junior Subordinated Debt Security Tax Event" means the receipt by the
applicable Associates Trust of an opinion of counsel experienced in such matters
to the effect that, as a result of any amendment to, or change (including any
announced proposed change) in, the laws (or any regulations thereunder) of the
United States or any political subdivision or taxing authority thereof or
therein, or as a result of any official
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administrative written decision, pronouncement or action or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which proposed change, pronouncement, action or decision is
announced on or after the date of issuance of the applicable series of
Corresponding Junior Subordinated Debt Securities pursuant to the applicable
Junior Subordinated Indenture, there is more than an insubstantial risk that (i)
the applicable Associates Trust is, or will be within 90 days of the date of
such opinion, subject to United States Federal income tax with respect to income
received or accrued on the corresponding series of Corresponding Junior
Subordinated Debt Securities, (ii) interest payable by the Company on such
series of Corresponding Junior Subordinated Debt Securities is not, or within 90
days of the date of such opinion, will not be, deductible by the Company, in
whole or in part, for United States Federal income tax purposes or (iii) the
applicable Associates Trust is, or will be within 90 days of the date of such
opinion, subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
"Investment Company Event" means the receipt by the applicable Associates
Trust of an opinion of counsel experienced in such matters to the effect that,
as a result of the occurrence of a change in law or regulation or a change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change in the Investment
Company Act"), the applicable Associates Trust is or will be considered an
"investment company" that is required to be registered under the Investment
Company Act of 1940, as amended (the "Investment Company Act"), which Change in
the Investment Company Act becomes effective on or after the date of original
issuance of the series of Preferred Securities issued by the Associates Trust.
Restrictions on Certain Payments. The Company will, unless otherwise
provided in the applicable Prospectus Supplement, covenant, as to each series of
Corresponding Junior Subordinated Debt Securities, that it will not, and will
not permit any subsidiary of the Company to, (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Company's capital stock or (ii) make any payment of
principal, interest or premium, if any, on or repay, repurchase or redeem any
debt securities of the Company (including other Corresponding Junior
Subordinated Debt Securities) that rank pari passu with or junior in interest to
the Corresponding Junior Subordinated Debt Securities or make any guarantee
payments with respect to any guarantee by the Company of the debt securities of
any subsidiary of the Company if such guarantee ranks pari passu or junior in
interest to the Corresponding Junior Subordinated Debt Securities (other than
(a) dividends or distributions in common stock of the Company, (b) redemptions
or purchases of any rights pursuant to the Company's Rights Agreement, or any
successor to such Rights Agreement, and the declaration of a dividend of such
rights or the issuance of stock under such plans in the future, (c) payments
under any Guarantee and (d) purchases of common stock related to the issuance of
common stock under any of the Company's benefit plans for its directors,
officers or employees) if at such time (A) there shall have occurred any event
of which the Company has actual knowledge (a) that with the giving of notice or
the lapse of time, or both, would constitute an Event of Default under the
Junior Subordinated Indenture with respect to the Corresponding Junior
Subordinated Debt Securities of such series and (b) in respect of which the
Company shall not have taken reasonable steps to cure, (B) if such Corresponding
Junior Subordinated Debt Securities are held by an Associates Trust which is the
issuer of a series of related Preferred Securities, the Company shall be in
default with respect to its payment of any obligations under the Guarantee
relating to such related Preferred Securities or (C) the Company shall have
given notice of its selection of an Extension Period as provided pursuant to the
Junior Subordinated Indenture with respect to the Corresponding Junior
Subordinated Debt Securities of such series and shall not have rescinded such
notice, or such Extension Period, or any extension thereof, shall be continuing.
Enforcement of Certain Rights by Holders of Preferred Securities. If an
Event of Default with respect to a series of Corresponding Junior Subordinated
Debt Securities has occurred and is continuing and such event is attributable to
the failure of the Company to pay principal of or premium, if any, or interest,
if any, on such series of Corresponding Junior Subordinated Debt Securities on
the date such interest, premium or principal is otherwise payable, a holder of
related Preferred Securities may institute a legal proceeding directly against
the Company for enforcement of payment to such holder of the principal of or
premium, if any, or interest, if any, on such Corresponding Junior Subordinated
Debt Securities having a principal amount equal to the aggregate
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Liquidation Amount of the related Preferred Securities of such holder (a "Direct
Action"). The Company may not amend the Junior Subordinated Indenture to remove
the foregoing right to bring a Direct Action without the prior written consent
of the holders of all of the Preferred Securities. If the right to bring a
Direct Action is removed, the applicable Associates Trust may become subject to
the reporting obligations under the Exchange Act. The Company shall have the
right pursuant to the Junior Subordinated Indenture to set-off any payment made
to such holder of Preferred Securities by the Company in connection with a
Direct Action. Unless otherwise specified in the applicable Prospectus
Supplement, the holders of the related Preferred Securities will not be able to
exercise directly any remedies other than those set forth in the preceding
paragraph available to the holders of the Corresponding Junior Subordinated Debt
Securities.
CONCERNING THE INDENTURE TRUSTEES
Business and other relationships (including other trusteeships), if any,
between the Company and its affiliates, on the one hand, and the Indenture
Trustee, on the other hand, under the Indenture pursuant to which the Debt
Securities are issued will be described in the Prospectus Supplement relating to
such Debt Securities.
In the event Debt Securities are issued pursuant to an Indenture with an
Indenture Trustee which is also an Indenture Trustee for any subordinate or
superior class of Debt Securities pursuant to an Indenture, the occurrence of
any default under either Indenture could create a conflicting interest for the
Indenture Trustee under the Trust Indenture Act. If such default has not been
cured or waived within 90 days after such Indenture Trustee has or acquires a
conflicting interest, such Indenture Trustee generally is required by the Trust
Indenture Act to eliminate such conflicting interest or resign as Indenture
Trustee with respect to the Debt Securities issued under one such Indenture. In
the event of the Indenture Trustee's resignation, the Company shall promptly
appoint a successor trustee with respect to the affected Debt Securities.
DESCRIPTION OF THE WARRANTS TO PURCHASE DEBT SECURITIES
The following statements with respect to Warrants to purchase Debt
Securities (the "Debt Warrants") are summaries of, and subject to, the detailed
provisions of a Debt Warrant Agreement (the "Debt Warrant Agreement") to be
entered into by the Company and a warrant agent to be selected at the time of
issue (the "Debt Warrant Agent"), a form of which will be filed with the
Commission.
GENERAL
The Debt Warrants, evidenced by Debt Warrant certificates (the "Debt
Warrant Certificates"), may be issued under the Debt Warrant Agreement
independently or together with any Securities offered by any Prospectus
Supplement and may be attached to or separate from such Securities. If Debt
Warrants are offered, the Prospectus Supplement will describe the terms of the
Debt Warrants, including the following: (i) the offering price, if any; (ii) the
designation, aggregate principal amount, and terms of the Debt Securities
purchasable upon exercise of the Debt Warrants; (iii) if applicable, the
designation and terms of the Securities with which the Debt Warrants are issued
and the number of Debt Warrants issued with each such Security; (iv) if
applicable, the date on and after which the Debt Warrants and the related Debt
Securities will be separately transferable; (v) the principal amount of Debt
Securities purchasable upon exercise of one Debt Warrant and the price at which
such principal amount of Debt Securities may be purchased upon such exercise;
(vi) the date on which the right to exercise the Debt Warrants shall commence
and the date on which such right shall expire; (vii) Federal income tax
consequences; (viii) whether the Debt Warrants represented by the Debt Warrant
Certificates will be issued in registered or bearer form; and (ix) any other
terms of the Debt Warrants.
Debt Warrant Certificates may be exchanged for new Debt Warrant
Certificates of different denominations and may (if in registered form) be
presented for registration of transfer at the corporate trust office of the Debt
Warrant Agent or any Co-Debt Warrant Agent, which will be identified in the
Prospectus Supplement, or at such other office as may be set forth therein.
Holders of Debt Warrants do not have any of the rights of Holders of Debt
Securities (except to the extent that the consent of holders of Debt Warrants
may be required
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for certain modifications of the terms of the Indenture and the series of Debt
Securities issuable upon exercise of the Debt Warrants) and are not entitled to
payments of principal of and interest, if any, on such Debt Securities.
EXERCISE OF WARRANTS TO PURCHASE DEBT SECURITIES
Debt Warrants may be exercised by surrendering the Debt Warrant Certificate
at the corporate trust office of the Debt Warrant Agent or at the corporate
trust office of the Co-Debt Warrant Agent, if any, with the form of election to
purchase on the reverse side of the Debt Warrant Certificate properly completed
and executed, and by payment in full of the exercise price, as set forth in the
Prospectus Supplement. Upon the exercise of Debt Warrants, the Debt Warrant
Agent or Co-Debt Warrant Agent, if any, will, as soon as practicable, deliver
the Debt Securities in authorized denominations in accordance with the
instructions of the holder exercising the Debt Warrant and at the sole cost and
risk of such holder. If less than all of the Debt Warrants evidenced by the Debt
Warrant Certificate are exercised, a new Debt Warrant Certificate will be issued
for the remaining amount of Debt Warrants.
DESCRIPTION OF THE PREFERRED STOCK
The following description is a summary of certain provisions of the
authorized Preferred Stock and does not purport to be complete and is subject
to, and is qualified in its entirety by reference to, the Company's bylaws, the
Company's Restated Certificate of Incorporation, as amended from time to time,
and the Certificate of Designations with respect to each series of Preferred
Stock adopted by the board of directors (or a duly authorized committee thereof)
of the Company, which will be filed with the Commission in connection with the
offering of such series of Preferred Stock. The Prospectus Supplement relating
to an offering of Preferred Stock (or securities convertible into Preferred
Stock) will describe terms relevant thereto including, without limitation, the
number of shares offered, the initial offering price and market price and
dividend information.
GENERAL
Pursuant to the Company's Restated Certificate of Incorporation, the
Company is authorized to issue up to 50,000,000 shares of Preferred Stock, of
which 49,650,000 shares are available for issuance as of the date of this
Prospectus. The Preferred Stock is issuable from time to time in one or more
series and with such designations and preferences for each series as shall be
stated in the Certificate of Designations providing for the designation and
issue of each such series adopted by the board of directors (or any authorized
Committee thereof) of the Company. The board of directors is authorized by the
Company's Restated Certificate of Incorporation to determine the voting,
dividend, redemption and liquidation preferences and limitations pertaining to
such series. The board of directors, without shareholder approval, may issue
Preferred Stock with voting and other rights that could adversely affect the
voting power of the holders of the Common Stock and could have certain
antitakeover effects. The ability of the board of directors to issue Preferred
Stock without stockholder approval could have the effect of delaying, deferring
or preventing a change in control of the Company or the removal of existing
management. See "Certain Matters That May Have an Anti-Takeover
Effect -- Provisions of the Company's Restated Certificate of Incorporation and
Bylaws" below.
Any Preferred Stock offered hereby will have the dividend, liquidation and
voting rights set forth below unless otherwise provided in the Certificate of
Designations, and described in the Prospectus Supplement, relating to a
particular series of Preferred Stock. Reference is made to the Prospectus
Supplement relating to the particular series of Preferred Stock offered thereby
for specific terms, including: (i) the designation and stated value per share of
such Preferred Stock and the number of shares offered; (ii) the amount of
liquidation preference per share; (iii) the price at which such Preferred Stock
will be issued; (iv) the dividend rate (or method of calculation), the dates on
which dividends will be payable, whether such dividends will be cumulative or
noncumulative and, if cumulative, the dates from which dividends will accrue;
(v) any redemption or sinking fund provisions; (vi) any conversion or exchange
provisions; and (vii) any additional or other rights, preferences, privileges,
limitations and restrictions relating to such series of Preferred Stock.
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As described under "Description of Depositary Shares," the Company may, at
its option, elect to offer depositary shares ("Depositary Shares") evidenced by
depositary receipts ("Depositary Receipts"), each representing an interest (to
be specified in the Prospectus Supplement relating to the particular series of
the Preferred Stock) in a share of the particular series of the Preferred Stock
issued and deposited with a Preferred Stock Depositary (as defined below).
The Company does not currently have any shares of Preferred Stock
outstanding. However, the board of directors has reserved 350,000 shares of
Series A Preferred Stock for issuance in connection with the Rights Agreement
described below. See "Certain Matters That May Have an Anti-Takeover
Effect -- Rights Agreement." The Preferred Stock offered hereby will be issued
in one or more series. The holders of Preferred Stock will have no preemptive
rights. Preferred Stock will be fully paid and nonassessable upon issuance
against full payment of the purchase price therefor. Unless otherwise specified
in the Certificate of Designations, and described in the Prospectus Supplement,
relating to a particular series of Preferred Stock, each series of Preferred
Stock will, with respect to dividend rights and rights on liquidation,
dissolution and winding up of the Company, rank prior to the Common Stock (the
"Junior Stock") and on a parity with each other series of Preferred Stock
offered hereby (the "Parity Stock").
DIVIDEND RIGHTS
Holders of the Preferred Stock may be entitled to receive, when, as and if
declared by the board of directors (or a duly authorized committee thereof) of
the Company, out of funds legally available therefor, cash dividends at such
rates and on such dates as are set forth in the Certificate of Designations, and
described in the Prospectus Supplement, relating to such series of Preferred
Stock. Such rate may be fixed or variable or both. Each such dividend will be
payable to the holders of record as they appear on the stock record books of the
Company on such record dates as may be fixed by the board of directors (or a
duly authorized committee thereof) of the Company. Dividends on any series of
the Preferred Stock may be cumulative or noncumulative, as provided in the
Certificate of Designations, and described in the Prospectus Supplement,
relating thereto. If the board of directors of the Company fails to declare a
dividend payable on a dividend payment date on any series of Preferred Stock for
which dividends are noncumulative, then the right to receive a dividend in
respect of the dividend period ending on such dividend payment date will be
lost, and the Company will have no obligation to pay the dividend accrued for
such period, whether or not dividends on such series are declared for any future
period. Dividends on shares of each series of Preferred Stock for which
dividends are cumulative will accrue from the date set forth in the Certificate
of Designations, and described in the applicable Prospectus Supplement, relating
to such series.
The Preferred Stock of each series may include customary provisions (i)
restricting the payment of dividends or the making of other distributions on, or
the redemption, purchase or other acquisition of, Junior Stock unless full
dividends, including, in the case of cumulative Preferred Stock, accruals, if
any, in respect of prior dividend periods, on the shares of such series of
Preferred Stock have been paid and (ii) providing for the pro rata payment of
dividends on such series and other Parity Stock when dividends have not been
paid in full upon such series and other Parity Stock.
VOTING RIGHTS
The holders of Preferred Stock of a series offered hereby will not be
entitled to vote except as provided in the Certificate of Designations and
indicated in the Prospectus Supplement relating to such series of Preferred
Stock, or as required by applicable law.
REDEMPTION
The Company will have such rights, if any, to redeem shares of Preferred
Stock, and the holders of Preferred Stock will have such rights, if any, to
cause the Company to redeem shares of Preferred Stock, as may be set forth in
the Certificate of Designations, and described in the Prospectus Supplement,
relating to a series of Preferred Stock.
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CONVERSION OR EXCHANGE
The terms, if any, on which Preferred Stock of a series will be convertible
into or exchangeable for Class A Common Stock, other securities, property, cash
or obligations, or a combination of any of the foregoing, will be summarized in
the Prospectus Supplement relating to such series. Such terms may include
provisions for conversion or exchange, either on a mandatory basis, at the
option of the holder or at the option of the Company. The number of shares of
Class A Common Stock or other securities or the property, cash or obligations to
be received by the holders of a series of Preferred Stock upon conversion or
exchange will be calculated according to the factors and at such time as is
summarized in the related Prospectus Supplement.
RIGHTS UPON LIQUIDATION
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company, the holders of each series of Preferred Stock will be
entitled to receive out of assets of the Company available for distribution to
stockholders, before any distribution of assets is made to holders of Junior
Stock, liquidating distributions in the amount set forth in the Certificate of
Designations, and described in the Prospectus Supplement relating to such series
of Preferred Stock plus an amount equal to accrued and unpaid dividends, if any.
If, upon any voluntary or involuntary liquidation, dissolution or winding up of
the Company, the amounts payable with respect to the Preferred Stock of any
series are not paid in full, the holders of the Preferred Stock of such series
will share ratably in any such distribution of assets of the Company in
proration to the full respective preferential amounts (which may include
accumulated dividends) to which they are entitled. After payment of the full
amount of the liquidating distribution to which they are entitled, the holders
of such series of Preferred Stock will have no right or claim to any of the
remaining assets of the Company. Neither the sale of all or a portion of the
Company's assets nor the merger or consolidation of the Company into or with any
other corporation shall be deemed to be a dissolution, liquidation or winding
up, voluntarily or involuntarily, of the Company.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of certain
provisions of the Deposit Agreement (as defined below) and of the Depositary
Shares and Depositary Receipts summarizes the material terms of the Deposit
Agreement and of the Depositary Shares and Depositary Receipts, and is qualified
in its entirety by reference to, the form of Deposit Agreement and form of
Depositary Receipts relating to each series of the Preferred Stock.
GENERAL
The Company may, at its option, elect to have shares of Preferred Stock be
represented by Depositary Shares. The shares of any series of the Preferred
Stock underlying the Depositary Shares will be deposited under a separate
deposit agreement (the "Deposit Agreement") between the Company and a bank or
trust company selected by the Company (the "Preferred Stock Depositary"). The
Prospectus Supplement relating to a series of Depositary Shares will set forth
the name and address of the Preferred Stock Depositary. Subject to the terms of
the Deposit Agreement, each owner of a Depositary Share will be entitled,
proportionately, to all the rights, preferences and privileges of the Preferred
Stock represented thereby (including dividend, voting, redemption, conversion,
exchange and liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the Deposit Agreement, each of which will represent the applicable
interest in a number of shares of a particular series of the Preferred Stock
described in the applicable Prospectus Supplement.
A holder of Depositary Shares will be entitled to receive the shares of
Preferred Stock (but only in whole shares of Preferred Stock) underlying such
Depositary Shares. If the Depositary Receipts delivered by the holder evidence a
number of Depositary Shares in excess of the whole number of shares of Preferred
Stock to be withdrawn, the Depositary will deliver to such holder at the same
time a new Depositary Receipt evidencing such excess number of Depositary
Shares.
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DIVIDENDS AND OTHER DISTRIBUTIONS
The Preferred Stock Depositary will distribute all cash dividends or other
cash distributions in respect to the Preferred Stock to the record holders of
Depositary Receipts in proportion, insofar as possible, to the number of
Depositary Shares owned by such holders.
In the event of a distribution other than in cash in respect to the
Preferred Stock, the Preferred Stock Depositary will distribute property
received by it to the record holders of Depositary Receipts in proportion,
insofar as possible, to the number of Depositary Shares owned by such holders,
unless the Preferred Stock Depositary determines that it is not feasible to make
such distribution, in which case the Preferred Stock Depositary may, with the
approval of the Company, adopt such method as it deems equitable and practicable
for the purpose of effecting such distribution, including sale (at public or
private sale) of such property and distribution of the net proceeds from such
sale to such holders.
The amount so distributed in any of the foregoing cases will be reduced by
any amount required to be withheld by the Company or the Preferred Stock
Depositary on account of taxes.
CONVERSION AND EXCHANGE
If any Preferred Stock underlying the Depositary Shares is subject to
provisions relating to its conversion or exchange as set forth in the Prospectus
Supplement relating thereto, each record holder of Depositary Shares will have
the right or obligation to convert or exchange such Depositary Shares pursuant
to the terms thereof.
REDEMPTION OF DEPOSITARY SHARES
If Preferred Stock underlying the Depositary Shares is subject to
redemption, the Depositary Shares will be redeemed from the proceeds received by
the Preferred Stock Depositary resulting from the redemption, in whole or in
part, of the Preferred Stock held by the Preferred Stock Depositary. The
redemption price per Depositary Share will be equal to the aggregate redemption
price payable with respect to the number of shares of Preferred Stock underlying
the Depositary Shares. Whenever the Company redeems Preferred Stock from the
Preferred Stock Depositary, the Preferred Stock Depositary will redeem as of the
same redemption date a proportionate number of Depositary Shares representing
the shares of Preferred Stock that were redeemed. If less than all the
Depositary Shares are to be redeemed, the Depositary Shares to be redeemed will
be selected by lot or pro rata as may be determined by the Company.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Shares will cease, except the right to receive the
redemption price upon such redemption. Any funds deposited by the Company with
the Preferred Stock Depositary for any Depositary Shares which the holders
thereof fail to redeem shall be returned to the Company after a period of two
years from the date such funds are so deposited.
VOTING
Upon receipt of notice of any meeting at which the holders of any shares of
Preferred Stock underlying the Depositary Shares are entitled to vote, the
Preferred Stock Depositary will mail the information contained in such notice to
the record holders of the Depositary Receipts. Each record holder of such
Depositary Receipts on the record date (which will be the same date as the
record date for the Preferred Stock) will be entitled to instruct the Preferred
Stock Depositary as to the exercise of the voting rights pertaining to the
number of shares of Preferred Stock underlying such holder's Depositary Shares.
The Preferred Stock Depositary will endeavor, insofar as practicable, to vote
the number of shares of Preferred Stock underlying such Depositary Shares in
accordance with such instructions, and the Company will agree to take all
reasonable action which may be deemed necessary by the Preferred Stock
Depositary in order to enable the Preferred Stock Depositary to do so. The
Preferred Stock Depositary will abstain from voting the Preferred Stock to the
extent it does not receive specific written instructions from holders of
Depositary Receipts representing such Preferred Stock.
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RECORD DATE
Whenever (i) any cash dividend or other cash distribution shall become
payable, any distribution other than cash shall be made, or any rights,
preferences or privileges shall be offered with respect to the Preferred Stock,
or (ii) the Preferred Stock Depositary shall receive notice of any meeting at
which holders of Preferred Stock are entitled to vote or of which holders of
Preferred Stock are entitled to notice, or of the mandatory conversion of or any
election on the part of the Company to call for the redemption of any Preferred
Stock, the Preferred Stock Depositary shall in each such instance fix a record
date (which shall be the same as the record date for the Preferred Stock) for
the determination of the holders of Depositary Receipts (x) who shall be
entitled to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof or (y) who shall be entitled
to give instructions for the exercise of voting rights at any such meeting or to
receive notice of such meeting or of such redemption or conversion, subject to
the provisions of the Deposit Agreement.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt and any provision of the Deposit Agreement
may at any time be amended by agreement between the Company and the Preferred
Stock Depositary. However, any amendment which imposes or increases any fees,
taxes or other charges payable by the holders of Depositary Receipts (other than
taxes and other governmental charges, fees and other expenses payable by such
holders as stated under "Charges of Preferred Stock Depositary"), or which
otherwise prejudices any substantial existing right of holders of Depositary
Receipts, will not take effect as to outstanding Depositary Receipts until the
expiration of 90 days after notice of such amendment has been mailed to the
record holders of outstanding Depositary Receipts.
Whenever so directed by the Company, the Preferred Stock Depositary will
terminate the Deposit Agreement by mailing notice of such termination to the
record holders of all Depositary Receipts then outstanding at least 30 days
prior to the date fixed in such notice for such termination. The Preferred Stock
Depositary may likewise terminate the Deposit Agreement if at any time 45 days
shall have expired after the Preferred Stock Depositary shall have delivered to
the Company a written notice of its election to resign and a successor
depositary shall not have been appointed and accepted its appointment. If any
Depositary Receipts remain outstanding after the date of termination, the
Preferred Stock Depositary thereafter will discontinue the transfer of
Depositary Receipts, will suspend the distribution of dividends to the holders
thereof, and will not give any further notices (other than notice of such
termination) or perform any further acts under the Deposit Agreement except as
provided below and except that the Preferred Stock Depositary will continue (i)
to collect dividends on the Preferred Stock and any other distributions with
respect thereto and (ii) to deliver the Preferred Stock together with such
dividends and distributions and the net proceeds of any sales of rights,
preferences, privileges or other property, without liability for interest
thereon, in exchange for Depositary Receipts surrendered. At any time after the
expiration of two years from the date of termination, the Preferred Stock
Depositary may sell the Preferred Stock then held by it at public or private
sales, at such place or places and upon such terms as it deems proper and may
thereafter hold the net proceeds of any such sale, together with any money and
other property then held by it, without liability for interest thereon, for the
pro rata benefit of the holders of Depositary Receipts which have not been
surrendered.
CHARGES OF PREFERRED STOCK DEPOSITARY
The Company will pay all charges of the Preferred Stock Depositary
including charges in connection with the initial deposit of the Preferred Stock,
the initial issuance of the Depositary Receipts, the distribution of information
to the holders of Depositary Receipts with respect to matters on which Preferred
Stock is entitled to vote, withdrawals of the Preferred Stock by the holders of
Depositary Receipts or redemption or conversion of the Preferred Stock, except
for taxes (including transfer taxes, if any) and other governmental charges and
such other charges as are expressly provided in the Deposit Agreement to be at
the expense of holders of Depositary Receipts or persons depositing Preferred
Stock.
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MISCELLANEOUS
The Preferred Stock Depositary will make available for inspection by
holders of Depositary Receipts at its corporate office and its New York office,
all reports and communications from the Company which are delivered to the
Preferred Stock Depositary as the holder of Preferred Stock.
Neither the Preferred Stock Depositary nor the Company will be liable if it
is prevented or delayed by law or any circumstance beyond its control in
performing its obligations under the Deposit Agreement. The obligations of the
Preferred Stock Depositary under the Deposit Agreement are limited to performing
its duties thereunder without negligence or bad faith. The obligations of the
Company under the Deposit Agreement are limited to performing its duties
thereunder in good faith. Neither the Company nor the Preferred Stock Depositary
is obligated to prosecute or defend any legal proceeding in respect of any
Depositary Shares or Preferred Stock unless satisfactory indemnity is furnished.
The Company and the Preferred Stock Depositary are entitled to rely upon advice
of or information from counsel, accountants or other persons believed to be
competent and on documents believed to be genuine.
The Preferred Stock Depositary may resign at any time or be removed by the
Company, effective upon the acceptance by its successor of its appointment;
provided, that if a successor Preferred Stock Depositary has not been appointed
or accepted such appointment within 45 days after the Preferred Stock Depositary
has delivered a notice of election to resign to the Company, the Preferred Stock
Depositary may terminate the Deposit Agreement. See "-- Amendment and
Termination of Deposit Agreement" above.
DESCRIPTION OF THE COMMON STOCK
The following description is a summary of certain provisions of the Common
Stock and does not purport to be complete and is subject to, and is qualified in
its entirety by reference to, the Company's bylaws and Amended and Restated
Certificate of Incorporation. The Prospectus Supplement relating to any offering
of Class A Common Stock (or securities convertible into Class A Common Stock)
will describe terms relevant thereto including, without limitation, the number
of shares offered, the initial offering price and market price and dividend
information.
CLASS A COMMON STOCK
Pursuant to the Company's Amended and Restated Certificate of
Incorporation, the Company is authorized to issue up to 1,150,000,000 shares of
Class A Common Stock. As of August 31, 1998, 346,385,617 shares of Class A
Common Stock were issued and outstanding. All shares of Class A Common Stock
currently outstanding are, and shares of Class A Common Stock to be issued in
connection with any offering will be, fully paid and nonassessable.
CLASS B COMMON STOCK
Pursuant to the Company's Amended and Restated Certificate of
Incorporation, the Company is authorized to issue up to 400,000,000 shares of
Class B Common Stock. Prior to the Spin-Off of the Company by Ford, Ford owned
255,881,180 shares of Class B Common Stock, constituting all of the outstanding
Class B Common Stock. Immediately prior to the Spin-Off, Ford converted all such
shares of Class B Common Stock into Class A Common Stock. Therefore, as of
August 31, 1998, no shares of Class B Common Stock were issued and outstanding.
The Company's Restated Certificate of Incorporation provides that the Company
may not reissue any shares of Class B Common Stock after such Class B Common
Stock has been converted into Class A Common Stock. Consequently, the Company
has 144,118,820 shares of Class B Common Stock available for issuance. The
Company has not registered any shares of Class B Common Stock for issuance under
this Prospectus.
VOTING RIGHTS
The holders of Class A Common Stock and Class B Common Stock generally have
identical rights except that holders of Class A Common Stock are entitled to one
vote per share while holders of Class B
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Common Stock are entitled to five votes per share on all matters to be voted on
by stockholders. Holders of shares of Class A Common Stock and Class B Common
Stock are not entitled to cumulate their votes in the election of directors.
Generally, all matters to be voted on by stockholders must be approved by a
majority (or, in the case of election of directors, by a plurality) of the votes
entitled to be cast by all shares of Class A Common Stock and Class B Common
Stock present in person or represented by proxy, voting together as a single
class, subject to any voting rights granted to holders of any Preferred Stock.
Except as otherwise provided by law, and subject to any voting rights granted to
holders of any outstanding Preferred Stock, amendments to the Company's Restated
Certificate of Incorporation must be approved by a majority of the combined
voting power of all of Class A Common Stock and Class B Common Stock, voting
together as a single class. However, amendments to the Company's Restated
Certificate of Incorporation that would alter or change the powers, preferences
or special rights of the Class A Common Stock or the Class B Common Stock so as
to affect them adversely also must be approved by a majority of the votes
entitled to be cast by the holders of the shares affected by the amendment,
voting as a separate class. Notwithstanding the foregoing, any amendment to the
Company's Restated Certificate of Incorporation to increase or decrease the
authorized shares of any class must be approved upon the affirmative vote of the
holders of a majority of the Class A Common Stock and Class B Common Stock,
voting together as a single class.
DIVIDENDS
Holders of Common Stock will share ratably in dividends when, as and if
declared by the board of directors out of funds legally available therefor,
subject to the rights of holders of any outstanding shares of Preferred Stock.
The Company has paid regular quarterly dividends on its Common Stock of $.10 per
share in each quarter since the completion of the initial public offering of the
Company's Common Stock in May 1996. There can be no assurance that the Company
will continue to pay quarterly dividends or that, if paid, the amount of any
dividend payments will not decrease.
OTHER RIGHTS
In the event of any merger or consolidation of the Company with or into
another company in connection with which shares of Common Stock are converted
into or exchangeable for shares of stock, other securities or property
(including cash), all holders of Common Stock, regardless of class, will be
entitled to receive the same kind and amount of shares of stock and other
securities and property (including cash).
On liquidation, dissolution or winding up of the Company, after payment in
full of the amounts required to be paid to holders of Preferred Stock, all
holders of Common Stock will be entitled to share ratably in any assets
available for distribution to holders of shares of Common Stock.
No shares of Common Stock are subject to redemption or have preemptive
rights to purchase additional shares of Common Stock.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Class A Common Stock is First
Chicago Trust Company of New York.
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CERTAIN MATTERS THAT MAY HAVE AN ANTI-TAKEOVER EFFECT
PROVISIONS OF THE COMPANY'S RESTATED CERTIFICATE OF INCORPORATION AND BYLAWS
Certain provisions of the Company's Restated Certificate of Incorporation
and bylaws summarized below may be deemed to have an anti-takeover effect and
may delay, deter or prevent a tender offer or takeover attempt that a holder of
Common Stock might consider to be in its best interest, including attempts that
might result in a premium being paid over the market price for shares held by
holders of Common Stock.
The Company's Restated Certificate of Incorporation and bylaws provide
that, subject to any rights of holders of Preferred Stock to elect additional
directors under specified circumstances, the number of directors of the Company
will not be more than 12 nor less than three, with the exact number of directors
of the Company to be fixed from time to time as provided in the bylaws. The
bylaws provide that, subject to the rights of holders of Preferred Stock to
elect additional directors under specified circumstances, the number of
directors will be fixed from time to time exclusively by resolution of the board
of directors adopted by the affirmative vote of directors constituting not less
than a majority of the total number of directors that the Company would have if
there were no vacancies on the Company's board of directors. In addition, the
Restated Certificate of Incorporation and bylaws provide that, subject to any
rights of holders of Preferred Stock, and unless the Company's board of
directors otherwise determines, any vacancies will be filled by the affirmative
vote of a majority of the remaining members of the board of directors, though
less than a quorum, or by a sole remaining director; except as otherwise
provided by law, and such vacancy may not be filled by the stockholders. As of
the date of this Prospectus, the Board of Directors has set the number of
directors at seven.
The Company's bylaws provide for an advance notice procedure for the
nomination, other than by or at the direction of the board of directors, of
candidates for election as directors as well as for other stockholder proposals
to be considered at annual meetings of stockholders. In general, notice of
intent to nominate a director or raise matters at such meetings will have to be
received in writing by the Company not less than 60 or more than 90 days prior
to the anniversary of the previous year's annual meeting of stockholders, and
must contain certain information concerning the person to be nominated or the
matters to be brought before the meeting and concerning the stockholder
submitting the proposal. The Company's Restated Certificate of Incorporation and
bylaws also provide that special meetings of stockholders may be called only by
certain specified officers of the Company or by any such officer at the request
in writing of a majority of the board of directors; special meetings of
stockholders cannot be called by stockholders. In addition, the Company's
Restated Certificate of Incorporation provides that any action required or
permitted to be taken by stockholders may be effected only at a duly called
annual or special meeting of stockholders and may not be effected by a written
consent by stockholders in lieu of such a meeting.
The Company's Restated Certificate of Incorporation also provides that the
affirmative vote of the holders of at least 75% of the voting power of all
classes of outstanding capital stock, voting together as a single class, is
required to amend, repeal or adopt any provision inconsistent with the
provisions of the Restated Certificate of Incorporation discussed above. The
Restated Certificate of Incorporation and bylaws further provide that the bylaws
may be altered, amended or repealed by the affirmative vote of directors
constituting not less than a majority of the entire board of directors (if
effected by action of the board of directors) or by the affirmative vote of the
holders of at least 75% of the total voting power of all classes of outstanding
capital stock, voting together as a single class.
RIGHTS PLAN
On April 8, 1998, the board of directors of the Company declared a dividend
of one preferred stock purchase right (a "Right") for each outstanding share of
Class A Common Stock. The Company paid the dividend on April 20, 1998 (the
"Record Date"), to the stockholders of record on that date. Each Right entitles
the registered holder to purchase from the Company one one-thousandth of a share
of Series A Junior Participating Preferred Stock, par value $.01 per share (the
"Series A Preferred Shares"), of the Company at a price of $400 per one
one-thousandth of a Series A Preferred Share (the "Purchase Price"), subject to
adjustment. The description and terms of the rights are set forth in a Rights
Agreement, dated as of April 13,
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1998 (the "Rights Agreement"), between the Company and First Chicago Trust
Company of New York, as Rights Agent (the "Rights Agent"), a copy of which is
incorporated as an exhibit to the registration statement to which this
Prospectus forms a part.
Until the earlier to occur of (i) 10 days following a public announcement
that a person or group of affiliated or associated persons (an "Acquiring
Person") has acquired beneficial ownership of 15% or more of the outstanding
Class A Common Stock or (ii) 10 business days (or such later date as may be
determined by action of the board of directors prior to such time as any person
or group of affiliated persons becomes an Acquiring Person) following the
commencement of, or announcement of an intention to make, a tender offer or
exchange offer the consummation of which would result in the beneficial
ownership by a person or group of 15% or more of the outstanding shares of Class
A Common Stock (the earlier of such dates being called the "Date of
Distribution"), the Rights will be evidenced, with respect to any of the Class A
Common Stock certificates outstanding as of the Record Date, by such Class A
Common Stock certificates together with a copy of the Summary of Rights to
Purchase Shares of Preferred Stock, a copy of which is attached as an exhibit to
the Rights Agreement ("Summary of Rights").
The Rights Agreement provides that, until the Date of Distribution (or
earlier redemption or expiration of the Rights), the Rights will be transferred
with and only with the shares of Class A Common Stock. Until the Date of
Distribution (or earlier redemption or expiration of the Rights), new Class A
Common Stock certificates issued after the Record Date upon transfer or new
issuances of Class A Common Stock will contain a notation incorporating the
Rights Agreement by reference. Until the Date of Distribution (or earlier
redemption or expiration of the Rights), the surrender for transfer of any
certificates for Class A Common Stock outstanding as of the Record Date, even
without such notation or a copy of the Summary of Rights, will also constitute
the transfer of the Rights associated with the shares of Class A Common Stock
represented by such certificate. As soon as practicable following the Date of
Distribution, separate certificates evidencing the Rights ("Right Certificates")
will be mailed to holders of record of the Class A Common Stock as of the close
of business on the Date of Distribution and such separate Right Certificates
alone will evidence the Rights.
The Rights are not exercisable until the Date of Distribution. The Rights
will expire on April 13, 2008 (the "Final Expiration Date"), unless the Final
Expiration Date is extended or unless the Rights are earlier redeemed by the
Company, in each case, as described below.
The Purchase Price payable, and the number of Series A Preferred Shares or
other securities or property issuable, upon exercise of the Rights are subject
to adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Series A
Preferred Shares, (ii) upon the grant to holders of the Series A Preferred
Shares of certain rights or warrants to subscribe for or purchase Series A
Preferred Shares at a price, or securities convertible into Series A Preferred
Shares with a conversion price, less than the then-current market price of the
Series A Preferred Shares or (iii) upon the distribution to holders of the
Series A Preferred Shares of evidences of indebtedness or assets (excluding
regular periodic cash dividends paid out of earnings or retained earnings or
dividends payable in Series A Preferred Shares) or of subscription rights or
warrants (other than those referred to above).
The number of outstanding Rights is also subject to adjustment in the event
of a stock split of the Class A Common Stock or a stock dividend on the Class A
Common Stock payable in Class A Common Stock or subdivisions, consolidations or
combinations of the Class A Common Stock occurring, in any such case, prior to
the Date of Distribution.
Series A Preferred Shares purchasable upon exercise of the Rights will not
be redeemable. Each Preferred Share will be entitled, when, as and if declared
to a minimum preferential quarterly dividend payment of $1 per share but will be
entitled to an aggregate dividend of 1,000 times the dividend declared per share
of Class A Common Stock. In the event of liquidation, the holders of the Series
A Preferred Shares will be entitled to a minimum preferential liquidation
payment of $1,000 per share (plus any accrued but unpaid dividends) but will be
entitled to an aggregate payment of 1,000 times the payment made per share of
Class A Common Stock. Each Series A Preferred Share will have 1,000 votes,
voting together with the Class A Common Stock. Finally, in the event of any
merger, consolidation or other transaction in which shares of Class A Common
Stock are exchanged, each Series A Preferred Share will be entitled to receive
1,000 times
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the amount received per share of Class A Common Stock. These rights are
protected by customary antidilution provisions.
Because of the nature of the Series A Preferred Shares' dividend,
liquidation and voting rights, the value of the one one-thousandth interest in a
Series A Preferred Share purchasable upon exercise of each Right should
approximate the value of one share of Class A Common Stock.
In the event that any person or group of affiliated or associated persons
becomes an Acquiring Person, the Rights Agreement provides that proper provision
shall be made so that each holder of a Right (other than Rights beneficially
owned by the Acquiring Person, which will thereafter be void) will thereafter
have the right to receive upon exercise of the Right at the then current
exercise price of the Right, that number of shares of Class A Common Stock
having a market value of two times the exercise price of the Right.
In the event that, after a person or group has become an Acquiring Person,
the Company is acquired in a merger or other business combination transaction or
50% or more of its consolidated assets or earning power are sold, the Rights
Agreement provides that proper provision will be made so that each holder of a
Right (other than Rights beneficially owned by an Acquiring Person or certain
other transferees, which will have become void) will thereafter have the right
to receive, upon the exercise thereof of the Right at the then current exercise
price of the Right, that number of shares of common stock of the person with
whom the Company has engaged in the foregoing transaction which number of shares
at the time of such transaction will have a market value of two times the
exercise price of the Right.
At any time after any person or group becomes an Acquiring Person and prior
to the acquisition by such person or group of 50% or more of the outstanding
Class A Common Stock or the occurrence of any event described in the preceding
paragraph, the board of directors of the Company may exchange the Rights (other
than Rights owned by such person or group which will have become void), in whole
or in part, at an exchange ratio of one share of Class A Common Stock, or one
one-thousandth of a Series A Preferred Share (or of a share of a class or series
of the Company's Preferred Stock having equivalent rights, preferences and
privileges), per Right (subject to adjustment).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional Series A Preferred Shares will be issued
(other than fractions which are integral multiples of one one-thousandth of a
Series A Preferred Share, which may, at the election of the Company, be
evidenced by depositary receipts) and in lieu thereof, an adjustment in cash
will be made based on the market price of the Series A Preferred Shares on the
last trading day prior to the date of exercise.
At any time prior to the time an Acquiring Person becomes such, the board
of directors of the Company may redeem the Rights in whole, but not in part, at
a price of $.01 per Right (the "Redemption Price"). The redemption of the Rights
may be made effective at such time, on such basis and with such conditions as
the Board of Directors in its sole discretion may establish. Immediately upon
any redemption of the Rights, the right to exercise the Rights will terminate
and the only right of the holders of Rights will be to receive the Redemption
Price.
For so long as Rights are then redeemable, the Company may, except with
respect to the Redemption Price, amend the Rights in any manner. After the
Rights are no longer redeemable the Company may, except with respect to the
Redemption Price, amend the Rights in any manner that does not adversely affect
the interests of holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends.
THE DELAWARE GENERAL CORPORATION LAW
The Company is a Delaware corporation subject to Section 203 of the
Delaware General Corporation Law (the "Delaware Law"). Section 203 provides
that, subject to certain exceptions specified therein, a corporation shall not
engage in any business combination with any "interested stockholder" for a
three-year
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period following the date that such stockholder becomes an interested
stockholder unless (i) prior to such time, the board of directors of the
corporation approved either the business combination or the transaction which
resulted in the stockholder becoming an interested stockholder, (ii) upon
consummation of the transaction which resulted in the stockholder becoming an
interested stockholder, the interested stockholder owned at least 85% of the
voting stock of the corporation outstanding at the time the transaction
commenced (excluding certain shares) or (iii) on or subsequent to such time, the
business combination is approved by the board of directors of the corporation
and by the affirmative vote of at least 66 2/3% of the outstanding voting stock
which is not owned by the interested stockholder. Except as specified in Section
203 of the Delaware Law, an interested stockholder is defined to include (x) any
person that is the owner of 15% or more of the outstanding voting stock of the
corporation, or is an affiliate or associate of the corporation and was the
owner of 15% or more of the outstanding voting stock of the corporation, at any
time within three years immediately prior to the relevant date and (y) the
affiliates and associates of any such person. Under certain circumstances,
Section 203 of the Delaware Law makes it more difficult for an "interested
stockholder" to effect various business combinations with a corporation for a
three-year period, although the stockholders may elect to exclude a corporation
from the restrictions imposed thereunder.
REGULATORY MATTERS
Because of the nature of the businesses in which the Company operates, the
acquisition of various amounts of its equity securities may not be permitted
without regulatory approvals. While the information below is not meant to be
complete, below are certain principal regulatory thresholds.
The Company indirectly owns all of the capital stock of insurance companies
domiciled in the states of Delaware, Indiana, Nevada, Tennessee and Texas. The
respective insurance laws of these states require prior approval by the state's
insurance commissioner of any acquisition of control of a domestic insurance
company or of any company which controls a domestic insurance company. "Control"
is presumed to exist through the ownership of 10% or more of the voting
securities of a domestic insurance company or of any company which controls a
domestic insurance company. Therefore, any person owning 10% or more of the
value of the outstanding Common Stock may be presumed to have acquired control
of the Company's insurance subsidiaries unless the insurance commissioners of
Delaware, Indiana, Nevada, Tennessee and Texas, following application by such
purchaser in each such state, determine otherwise.
The United Kingdom's Insurance Companies Act 1982 requires the prior
approval by the Department of Trade and Industry of anyone proposing to become a
"controller" of an insurance company regulated under such Act. Any company or
individual that directly or indirectly exercises 10% or more of the voting power
at a general meeting of a regulated insurance company is considered a
"controller." Therefore, any person owning 10% or more of the value of the
outstanding Common Stock will be a controller of the Company's U.K.
subsidiaries, Cumberland Insurance Company Limited and Cumberland Life Insurance
Co. Limited.
The Company directly owns all of the capital stock of Associates National
Bank (Delaware) ("ANB") and indirectly owns all of the capital stock of
Associates Capital Bank, Inc. ("ACB") the deposits of which are insured by the
Federal Deposit Insurance Corporation. The Federal Change in Bank Control Act
and the regulations issued thereunder require that a person (including an
individual) file a notice with the appropriate federal bank regulatory agency
prior to acquiring 10% or more of any class of voting securities of a company
that controls an insured depository institution such as ANB or ACB.
The Company indirectly owns all of the shares of stock of licensed lenders
in the states of Georgia, Hawaii, Nevada, New York, Texas and Virginia and in
the Commonwealth of Puerto Rico. The lender licensing laws of these states and
Puerto Rico require approval by the appropriate regulatory agency prior to any
acquisition of control of any company which controls a license. "Control" is
presumed to exist through the ownership of 10% or more (25% in Georgia and
Virginia) of the voting securities of a licensee or a company that controls a
licensee. Therefore any person owning 10% or more (25% in Georgia and Virginia)
of the value of the outstanding Common Stock will be presumed to have acquired
control of the Company's licensed lenders in these jurisdictions unless the
appropriate regulatory agency determines otherwise.
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LIMITATIONS ON DIRECTORS' LIABILITY
The Company's Restated Certificate of Incorporation provides that no
director of the Company shall be liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the Company or
its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) in respect of
certain unlawful dividend payments or stock redemptions or repurchases or (iv)
for any transaction from which the director derived an improper personal
benefit. The effect of these provisions will be to eliminate the rights of the
Company and its stockholders (through stockholders' derivative suits on behalf
of the Company) to recover monetary damages against a director for breach of
fiduciary duty as a director (including breaches resulting from grossly
negligent behavior), except in the situations described above.
DESCRIPTION OF THE WARRANTS TO PURCHASE CLASS A
COMMON STOCK OR PREFERRED STOCK
The following statements with respect to the Warrants to purchase Class A
Common Stock or Preferred Stock (the "Stock Warrants") are summaries of, and
subject to, the detailed provisions of a Stock Warrant Agreement (the "Stock
Warrant Agreement") to be entered into by the Company and a warrant agent to be
selected at the time of issue (the "Stock Warrant Agent"), a form of which will
be filed with the Commission.
GENERAL
The Stock Warrants, evidenced by Stock Warrant certificates (the "Stock
Warrant Certificates"), may be issued under the Stock Warrant Agreement
independently or together with any Securities offered by any Prospectus
Supplement and may be attached to or separate from such Securities. If Stock
Warrants are offered, the Prospectus Supplement will describe the terms of the
Stock Warrants, including the following: (i) the offering price, if any; (ii)
the number of shares of Preferred Stock or Class A Common Stock purchasable upon
exercise of each Stock Warrant and the initial price at which such shares may be
purchased upon exercise; (iii) if applicable, the designation and terms of the
Securities with which the Stock Warrants are issued and the number of Stock
Warrants issued with each such Security; (iv) if applicable, the date on and
after which the Stock Warrants and the related Preferred Stock or Class A Common
Stock will be separately transferable; (v) the date on which the right to
exercise the Stock Warrants shall commence and the date on which such right
shall expire; (vi) federal income tax consequences;(vii) call provisions of such
Stock Warrants, if any; (viii) whether the Stock Warrants represented by the
Stock Warrant Certificates will be issued in registered or bearer form; and (ix)
any additional or other rights, preferences, privileges, limitations and
restrictions relating to the Stock Warrants. The shares of Preferred Stock or
Class A Common Stock issuable upon the exercise of the Stock Warrants will, when
issued in accordance with the Stock Warrant Agreement, be fully paid and
nonassessable.
Stock Warrant Certificates may be exchanged for new Stock Warrant
Certificates of different denominations and may (if in registered form) be
presented for registration of transfer at the corporate trust office of the
Stock Warrant Agent or any Co-Stock Warrant Agent, which will be identified in
the Prospectus Supplement, or at such other office as may be set forth therein.
Holders of Stock Warrants do not have any of the rights of holders of Class A
Common Stock or Preferred Stock (except to the extent that the consent of
holders of Stock Warrant may be required for certain modifications of the terms
of the Class A Common Stock or Preferred Stock issuable upon exercise of the
Stock Warrants) and are not entitled to dividend payments on the Class A Common
Stock or Preferred Stock purchasable upon such exercise.
EXERCISE OF STOCK WARRANTS
Stock Warrants may be exercised by surrendering the Stock Warrant
Certificate at the corporate trust office of the Stock Warrant Agent or at the
corporate trust office of the Co-Stock Warrant Agent, if any, with the form of
election to purchase on the reverse side of the Stock Warrant Certificate
properly completed and executed, and by payment in full of the exercise price,
as set forth in the Prospectus Supplement. Upon the exercise of Stock Warrants,
the Stock Warrant Agent or Co-Stock Warrant Agent, if any, will, as soon as
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practicable, forward a certificate representing the number of shares of
Preferred Stock or Class A Common Stock purchasable upon such exercise in
accordance with the instructions of the holder exercising the Stock Warrant and
at the sole cost and risk of such holder. If less than all of the Stock Warrants
evidenced by the Stock Warrant Certificate are exercised, a new Stock Warrant
Certificate will be issued for the remaining amount of Stock Warrants.
ANTI-DILUTION PROVISIONS
Unless otherwise specified in the applicable Prospectus Supplement, the
exercise price payable and the number of shares purchasable upon the exercise of
each Stock Warrant will be subject to adjustment in certain events, including
(i) the issuance of a stock dividend to holders of Preferred Stock or Class A
Common Stock or a combination, subdivision or reclassification of the Preferred
Stock or Class A Common Stock; (ii) the issuance of rights, warrants or options
to all holders of Preferred Stock or Class A Common Stock entitling the holders
thereof to subscribe for or purchase Preferred Stock or Class A Common Stock for
an aggregate consideration per share less than the current market price per
share of the Preferred Stock or Class A Common Stock; or (iii) any distribution
by the Company to the holders of its Preferred Stock or Class A Common Stock of
evidences of indebtedness of the Company or of assets (excluding cash dividends
or distributions payable out of capital surplus and dividends and distributions
referred to in (i) above). No fractional shares will be issued upon exercise of
Stock Warrants, but the Company will pay the cash value of any fractional shares
otherwise issuable.
DESCRIPTION OF PREFERRED SECURITIES
The following description sets forth certain general terms and provisions
of the Preferred Securities to which any Prospectus Supplement may relate. The
particular terms of the Preferred Securities offered by any Prospectus
Supplement and the extent, if any, to which such general provisions may apply to
the Preferred Securities so offered will be described in the Prospectus
Supplement relating to such Preferred Securities.
Pursuant to the terms of the Trust Agreement for each Associates Trust, the
Administrative Trustees, on behalf of such Associates Trust, are authorized to
issue the Preferred Securities and the Common Securities. The Preferred
Securities of a particular issue will represent beneficial ownership interests
in the assets of such Associates Trust, and the holders thereof will be entitled
to a preference in certain circumstances with respect to Distributions and
amounts payable on redemption or liquidation over the Common Securities of such
Associates Trust, as well as other benefits as described in the corresponding
Trust Agreement. This summary of certain provisions of the Preferred Securities
and each Trust Agreement does not purport to be complete and is subject to, and
is qualified in its entirety by reference to, all the provisions of each Trust
Agreement, including the definitions therein of certain terms, and the Trust
Indenture Act. Wherever particular defined terms of a Trust Agreement (as
amended or supplemented from time to time) are referred to herein or in a
Prospectus Supplement, such defined terms are incorporated herein or therein by
reference. The form of the Trust Agreement has been filed as an exhibit to the
Registration Statement of which this Prospectus forms a part. Each of the
Associates Trusts is a legally separate entity, and the assets of one are not
available to satisfy the obligations of any of the others.
GENERAL
The Preferred Securities of an Associates Trust will rank pari passu, and
payments will be made thereon pro rata, with the Common Securities of that
Associates Trust except as described under "-- Subordination of Common
Securities." Legal title to the Corresponding Junior Subordinated Debt
Securities will be held by the Property Trustee in trust for the benefit of the
holders of the related Preferred Securities and Common Securities. Each
Guarantee Agreement executed by the Company for the benefit of the holders of an
Associates Trust's Preferred Securities (each a "Guarantee Agreement") will be a
guarantee on a junior subordinated basis with respect to the related Preferred
Securities but will not guarantee payment of Distributions or amounts payable on
redemption or liquidation of such Preferred Securities when the related
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Associates Trust does not have funds on hand available to make such payments.
See "Description of Guarantees."
DISTRIBUTIONS
Distributions on the Preferred Securities will be cumulative, will
accumulate from the date of original issuance and will be payable on such dates
as specified in the applicable Prospectus Supplement. Except as specified in the
applicable Prospectus Supplement, in the event that any date on which
Distributions are payable on the Preferred Securities is not a Business Day (as
defined below), payment of the Distribution payable on such date will be made on
the next succeeding day that is a Business Day (and without any interest or
other payment in respect to any such delay), with the same force and effect as
if made on such date (each date on which Distributions are payable in accordance
with the foregoing, a "Distribution Date"). Except as specified in the
applicable Prospectus Supplement, a "Business Day" shall mean any day other than
a Saturday or a Sunday, or a day on which banking institutions in The City of
New York are authorized or required by law to remain closed or a day on which
the corporate trust office of the Property Trustee or the Indenture Trustee
under the Junior Subordinated Indenture is closed for business.
The Associates Trust's Preferred Securities represent beneficial ownership
interests in the assets of the applicable Associates Trust, and the
Distributions on each Preferred Security will be payable at a rate specified in
the Prospectus Supplement for such Preferred Securities. The amount of
Distributions payable for any period will be computed on the basis of a 360-day
year of twelve 30-day months unless otherwise specified in the applicable
Prospectus Supplement. Distributions to which holders of Preferred Securities
are entitled will accumulate additional Distributions at the rate per annum if
and as specified in the applicable Prospectus Supplement. The term
"Distributions" as used herein includes any such additional Distributions unless
otherwise stated.
If provided in the applicable Prospectus Supplement, the Company shall have
the right at any time and from time to time during the term of any series of
Corresponding Junior Subordinated Debt Securities to defer payment of interest
for such number of consecutive interest payment periods as may be specified in
the applicable Prospectus Supplement (each, an "Extension Period"), subject to
the terms, conditions and covenants, if any, specified in such Prospectus
Supplement, provided that such Extension Period may not extend beyond the
maturity date of such series of Corresponding Junior Subordinated Debt
Securities. Certain United States Federal income tax consequences and special
considerations applicable to any such Corresponding Junior Subordinated Debt
Securities will be described in the applicable Prospectus Supplement. As a
consequence of any such extension, Distributions on the related Preferred
Securities would be deferred (but would continue to accumulate additional
Distributions thereon at the rate per annum set forth in the Prospectus
Supplement for such Preferred Securities) by the Associates Trust which issued
such Preferred Securities during any such Extension Period.
If the Company shall have given notice of its selection of an Extension
Period as provided pursuant to the Junior Subordinated Indenture with respect to
the Corresponding Junior Subordinated Debt Securities of a series and shall not
have rescinded such notice, or such Extension Period, or any extension thereof,
shall be continuing, the Company may not, and may not permit any subsidiary of
the Company to, (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of the
Company's capital stock or (ii) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Company (including other Corresponding Junior Subordinated Debt Securities) that
rank pari passu with or junior in interest to the Corresponding Junior
Subordinated Debt Securities of such series or make any guarantee payments with
respect to any guarantee by the Company of debt securities of any subsidiary of
the Company if such guarantee ranks pari passu or junior in interest to the
Corresponding Junior Subordinated Debt Securities of such series (other than (a)
dividends or distributions in common stock of the Company, (b) redemptions or
purchases of any rights pursuant to the Company's Rights Agreement, or any
successor to such Rights Agreement, and the declaration of a dividend of such
rights or the issuance of stock under such plans in the future, (c) payments
under any Guarantee and (d) purchases of common stock related to the issuance of
common stock under any of the Company's benefit plans for its directors,
officers or employees). For additional circumstances in which the Company is
restricted
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in making such payments, see "Description of the Debt Securities -- Certain
Provisions Relating to Corresponding Junior Subordinated Debt
Securities -- Restrictions on Certain Payments."
The revenue of each Associates Trust available for distribution to holders
of its Preferred Securities will be limited to payments under the Corresponding
Junior Subordinated Debt Securities in which the Associates Trust will invest
the proceeds from the issuance and sale of its Trust Securities. See
"Description of the Debt Securities -- Certain Provisions Relating to
Corresponding Junior Subordinated Debt Securities." If the Company does not make
interest payments on such Corresponding Junior Subordinated Debt Securities, the
Property Trustee will not have funds available to pay Distributions of the
related Preferred Securities. The payment of Distributions (if and to the extent
the Associates Trust has funds legally available for the payment of such
Distributions and cash sufficient to make such payments) is guaranteed by the
Company on a limited basis as set forth herein under "Description of
Guarantees."
Distributions on the Preferred Securities will be payable to the holders
thereof as they appear on the register of such Associates Trust on the relevant
record dates, which, as long as the Preferred Securities remain in book-entry
form, will be one Business Day prior to the relevant Distribution Date. Subject
to any applicable laws and regulations and the provisions of the applicable
Trust Agreement, each such payment will be made as described under "Book Entry
Issuance." In the event any Preferred Securities are not in book-entry form, the
relevant record date for such Preferred Securities shall be the date at least 15
days prior to the relevant Distribution Date, as specified in the applicable
Prospectus Supplement.
PAYMENT OF EXPENSES
Pursuant to each Junior Subordinated Indenture, the Company, as borrower,
has agreed to pay all debts and obligations (other than with respect to the
Trust Securities) and all costs and expenses of the applicable Associates Trust
(including, but not limited to, all costs and expenses relating to the
organization of the applicable Associates Trust, the fees and expenses of the
Property Trustee, the Delaware Trustee and the Administrative Trustees and all
costs and expenses relating to the operation of the applicable Associates Trust
(other than with respect to the Trust Securities)) and to pay any and all taxes,
duties, assessments or other governmental charges of whatever nature (other than
United States withholding taxes) imposed by the United States or any other
taxing authority, so that the net amounts received and retained by the
applicable Associates Trust after paying such fees, expenses, debts and
obligations will be equal to the amounts the applicable Associates Trust would
have received and retained had no such fees, expenses, debts and obligations
been incurred by or imposed on the applicable Associates Trust. The foregoing
obligations of the Company are for the benefit of, and shall be enforceable by,
any person to whom such fees, expenses, debts and obligations are owed (each, a
"Creditor"), whether or not such Creditor has received notice thereof. Any such
Creditor may enforce such obligations of the Company directly against the
Company, and the Company has agreed to irrevocably waive any right or remedy to
require that any such Creditor take any action against the applicable Associates
Trust or any other person before proceeding against the Company. The Company
shall execute such additional agreements as may be necessary to give full effect
to the foregoing.
REDEMPTION OR EXCHANGE
Upon the repayment or redemption, in whole or in part, of any Corresponding
Junior Subordinated Debt Securities, whether at maturity or upon earlier
redemption as provided in the applicable Junior Subordinated Indenture, the
proceeds from such repayment or redemption shall be applied by the Property
Trustee to redeem a Like Amount (as defined below) of the Trust Securities, upon
not less than 30 nor more than 60 days notice, at a redemption price (the
"Redemption Price") equal to the aggregate Liquidation Amount of such Trust
Securities plus accumulated but unpaid Distributions thereon to the date of
redemption (the "Redemption Date") and the related amount of the premium, if
any, paid by the Company upon the concurrent redemption of such Corresponding
Junior Subordinated Debt Securities. See "Description of the Debt
Securities -- Certain Provisions Relating to Corresponding Junior Subordinated
Debt Securities -- Redemption." If less than all of any series of Corresponding
Junior Subordinated Debt Securities are to be repaid or redeemed on a Redemption
Date, then the proceeds from such repayment or redemption shall be allocated to
the redemption pro rata of the related Trust Securities. The amount of premium,
if any, paid by
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the Company upon the redemption of all or any part of any series of any
Corresponding Junior Subordinated Debt Securities to be repaid or redeemed on a
Redemption Date shall be allocated to the redemption pro rata of the related
Trust Securities.
The Company will have the right to redeem any series of Corresponding
Junior Subordinated Debt Securities (i) subject to the conditions described
under "Description of the Debt Securities -- Certain Provisions Relating to
Corresponding Junior Subordinated Debt Securities -- Redemption" or (ii) as may
be otherwise specified in the applicable Prospectus Supplement.
"Like Amount" means (i) with respect to a redemption of any series of Trust
Securities, Trust Securities of such series having a Liquidation Amount (as
defined below) equal to that portion of the principal amount of Corresponding
Junior Subordinated Debt Securities to be contemporaneously redeemed in
accordance with the Junior Subordinated Indenture, allocated to the Common
Securities and to the Preferred Securities based upon the relative Liquidation
Amounts of such classes and the proceeds of which will be used to pay the
Redemption Price of such Trust Securities, and (ii) with respect to a
distribution of Corresponding Junior Subordinated Debt Securities to holders of
any series of Trust Securities in connection with a dissolution or liquidation
of the related Associates Trust, Corresponding Junior Subordinated Debt
Securities having a principal amount equal to the Liquidation Amount of the
Trust Securities of the holder to whom such Corresponding Junior Subordinated
Debt Securities are distributed. Unless otherwise specified in the applicable
Prospectus Supplement, "Liquidation Amount" means the stated amount per Trust
Security specified in the applicable Prospectus Supplement.
At any time, the Company has the right to dissolve an Associates Trust and,
after satisfaction of the liabilities of creditors of such Associates Trust as
provided by applicable law, cause the Corresponding Junior Subordinated Debt
Securities owned by such Associates Trust to be distributed to the holders of
the related Preferred Securities and Common Securities in liquidation of the
Associates Trust.
If provided in the applicable Prospectus Supplement, the Company shall have
the right to extend or shorten the maturity of any series of Corresponding
Junior Subordinated Debt Securities at the time that the Company exercises its
right to elect to dissolve the related Associates Trust and cause such
Corresponding Junior Subordinated Debt Securities to be distributed to the
holders of such related Preferred Securities and Common Securities in
liquidation of the Associates Trust, provided that it can extend the maturity
only if certain conditions specified in the applicable Prospectus Supplement are
met at the time such election is made and at the time of such extension.
After the liquidation date fixed for any distribution of Corresponding
Junior Subordinated Debt Securities for any series of Preferred Securities (i)
such series of Preferred Securities will no longer be deemed to be outstanding,
(ii) The Depository Trust Company ("DTC") or its nominee, as the record holder
of such series of Preferred Securities, will receive a registered global
certificate or certificates representing the Corresponding Junior Subordinated
Debt Securities to be delivered upon such distribution and (iii) any
certificates representing such series of Preferred Securities not held by DTC or
its nominee will be deemed to represent the Corresponding Junior Subordinated
Debt Securities having a principal amount equal to the stated liquidation amount
of such series of Preferred Securities, and bearing accrued and unpaid interest
in an amount equal to the accrued and unpaid Distributions on such series of
Preferred Securities until such certificates are presented to the Administrative
Trustees or their agent for transfer or reissuance.
There can be no assurance as to the market prices for the Preferred
Securities or the Corresponding Junior Subordinated Debt Securities that may be
distributed in exchange for Preferred Securities if a dissolution and
liquidation of an Associates Trust were to occur. Accordingly, the Preferred
Securities that an investor may purchase, or the Corresponding Junior
Subordinated Debt Securities that an investor may receive on dissolution and
liquidation of an Associates Trust, may trade at a discount to the price that
the investor paid to purchase the Preferred Securities.
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REDEMPTION AND EXCHANGE PROCEDURES
Preferred Securities redeemed on each Redemption Date shall be redeemed at
the Redemption Price with the applicable proceeds from the contemporaneous
redemption of the Corresponding Junior Subordinated Debt Securities. Redemptions
of the Preferred Securities shall be made and the Redemption Price shall be
payable on each Redemption Date only to the extent that the related Associates
Trust has funds on hand available for the payment of such Redemption Price. See
"-- Subordination of Common Securities."
If an Associates Trust gives a notice of redemption in respect of its
Preferred Securities, then, by 12:00 noon, New York City time, on the Redemption
Date, to the extent funds are available, the Property Trustee will deposit
irrevocably with DTC funds sufficient to pay the applicable Redemption Price and
will give DTC irrevocable instructions and authority to pay the Redemption Price
to the holders of such Preferred Securities. See "Book-Entry Issuance." If such
Preferred Securities are no longer in book-entry form, the Property Trustee, to
the extent funds are available, will irrevocably deposit with the paying agent
for such Preferred Securities funds sufficient to pay the applicable Redemption
Price and will give such paying agent irrevocable instructions and authority to
pay the Redemption Price to the holders thereof upon surrender of their
certificates evidencing such Preferred Securities. Notwithstanding the
foregoing, Distributions payable on or prior to the Redemption Date for any
Preferred Securities called for redemption shall be payable to the holders of
such Preferred Securities on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given and funds
deposited as required, then upon the date of such deposit, all rights of the
holders of such Preferred Securities so called for redemption will cease, except
the right of the holders of such Preferred Securities to receive the Redemption
Price, but without interest on such Redemption Price, and such Preferred
Securities will cease to be outstanding. Except as specified in the applicable
Prospectus Supplement, in the event that any date fixed for redemption of
Preferred Securities is not a Business Day, then payment of the Redemption Price
payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any such delay). In
the event that payment of the Redemption Price in respect of Preferred
Securities called for redemption is improperly withheld or refused and not paid
either by the Associates Trust or by the Company pursuant to the Guarantee as
described under "Description of Guarantees," Distributions on such Preferred
Securities will continue to accrue at the then applicable rate, from the
Redemption Date originally established by the Associates Trust for such
Preferred Securities to the date such Redemption Price is actually paid, in
which case the actual payment date will be the date fixed for redemption for
purposes of calculating the Redemption Price.
Subject to applicable law (including, without limitation, United States
Federal securities law), the Company or its subsidiaries may at any time and
from time to time purchase outstanding Preferred Securities by tender, in the
open market or by private agreement.
Payment of the Redemption Price on the Preferred Securities and any
distribution of Corresponding Junior Subordinated Debt Securities to holders of
Preferred Securities shall be made to the applicable recordholders thereof as
they appear on the register for such Preferred Securities on the relevant record
date, which shall be one Business Day prior to the relevant Redemption Date or
liquidation date, as applicable; provided, however, that in the event that any
Preferred Securities are not in book-entry form, the relevant record date for
such Preferred Securities shall be a date at least 15 days prior to the
Redemption Date or liquidation date, as applicable, as specified in the
applicable Prospectus Supplement.
If less than all of the Preferred Securities and Common Securities issued
by an Associates Trust are to be redeemed on a Redemption Date, then the
aggregate Liquidation Amount of such Preferred Securities and Common Securities
to be redeemed shall be allocated pro rata to the Preferred Securities and the
Common Securities based upon the relative Liquidation Amounts of such classes.
The particular Preferred Securities to be redeemed shall be selected on a pro
rata basis not more than 60 days prior to the Redemption Date by the Property
Trustee from the outstanding Preferred Securities not previously called for
redemption. The Property Trustee shall promptly notify the trust registrar in
writing of the Preferred Securities selected for redemption and, in the case of
any Preferred Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of each Trust Agreement, unless the
context otherwise requires, all provisions
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relating to the redemption of Preferred Securities shall relate, in the case of
any Preferred Securities redeemed or to be redeemed only in part, to the portion
of the aggregate Liquidation Amount of Preferred Securities which has been or is
to be redeemed.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each Holder of Trust Securities to be
redeemed at its registered address. Unless the Company defaults in payment of
the Redemption Price on the Corresponding Junior Subordinated Debt Securities,
on and after the Redemption Date interest ceases to accrue on such Junior
Subordinated Debt Securities or portions thereof (and distributions cease to
accrue on the related Preferred Securities or portions thereof) called for
redemption.
SUBORDINATION OF COMMON SECURITIES
Payment of Distributions on, and the Redemption Price of, each Associates
Trust's Preferred Securities and Common Securities, as applicable, shall be made
pro rata based on the Liquidation Amount of such Preferred Securities and Common
Securities; provided, however, that if on any Distribution Date or Redemption
Date an Event of Default with respect to any Junior Subordinated Debt Security
shall have occurred and be continuing, no payment of any Distribution on, or
Redemption Price of, any of the Associates Trust's Common Securities, and no
other payment on account of the redemption, liquidation or other acquisition of
such Common Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions on all of the Associates Trust's
outstanding Preferred Securities for all Distribution periods terminating on or
prior thereto, or in the case of payment of the Redemption Price the full amount
of such Redemption Price on all of the Associates Trust's outstanding Preferred
Securities then called for redemption, shall have been made or provided for, and
all funds available to the Property Trustee shall first be applied to the
payment in full in cash of all Distributions on, or Redemption Price of, the
Associates Trust's Preferred Securities then due and payable.
In the case of any Event of Default with respect to any Junior Subordinated
Debt Security, the Company as holder of such Associates Trust's Common
Securities will be deemed to have waived any right to act with respect to any
such Event of Default under the applicable Trust Agreement until the effect of
all such Events of Default with respect to such Preferred Securities has been
cured, waived or otherwise eliminated. Until any such Events of Default under
the applicable Trust Agreement with respect to the Preferred Securities have
been so cured, waived or otherwise eliminated, the Property Trustee shall act
solely on behalf of the holders of such Preferred Securities and not on behalf
of the Company as holder of the Associates Trust's Common Securities, and only
the holders of such Preferred Securities will have the right to direct the
Property Trustee to act on their behalf.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
Pursuant to each Trust Agreement, each Associates Trust shall automatically
dissolve upon expiration of its term and shall dissolve on the first to occur
of: (i) certain events of bankruptcy, dissolution or liquidation of the Company;
(ii) the distribution of a Like Amount of the Corresponding Junior Subordinated
Debt Securities to the holders of its Trust Securities, if the Company, as
Depositor, has given written direction to the Property Trustee to dissolve such
Associates Trust (which direction is optional and wholly within the discretion
of the Company, as Depositor); (iii) the redemption of all of the Associates
Trust's Trust Securities; and (iv) the entry of an order for the dissolution of
such Associates Trust by a court of competent jurisdiction.
If an early dissolution occurs as described in clause (i), (ii) or (iv)
above, the Associates Trust shall be liquidated by the Issuer Trustees as
expeditiously as the Issuer Trustees determine to be possible by distributing,
after satisfaction of liabilities to creditors of such Associates Trust as
provided by applicable law, to the holders of such Trust Securities a Like
Amount of the Corresponding Junior Subordinated Debt Securities, unless such
distribution is determined by the Property Trustee not to be practical, in which
event such holders will be entitled to receive out of the assets of the
Associates Trust available for distribution to holders, after satisfaction of
liabilities to creditors of such Associates Trust as provided by applicable law,
an
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amount equal to, in the case of holders of Preferred Securities, the aggregate
of the Liquidation Amount plus accrued and unpaid Distributions thereon to the
date of payment (such amount being the "Liquidation Distribution"). If such
Liquidation Distribution can be paid only in part because such Associates Trust
has insufficient assets available to pay in full the aggregate Liquidation
Distribution, then the amounts payable directly by such Associates Trust on its
Preferred Securities shall be paid on a pro rata basis. The holder(s) of such
Associates Trust's Common Securities will be entitled to receive distributions
upon any such liquidation pro rata with the holders of its Preferred Securities,
except that if a Junior Subordinated Debt Security Event of Default has occurred
and is continuing, the Preferred Securities shall have a priority over the
Common Securities.
EVENTS OF DEFAULT; NOTICE
Any one of the following events constitutes an "Event of Default" under
each Trust Agreement (a "Trust Event of Default") with respect to the Preferred
Securities issued thereunder (whatever the reason for such Trust Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(i) the occurrence of an Event of Default with respect to a
Corresponding Junior Subordinated Debt Security under the Junior
Subordinated Indenture (see "Description of Debt Securities -- Events of
Default"); or
(ii) default by the Property Trustee in the payment of any
Distribution when it becomes due and payable, and continuation of such
default for a period of 30 days; or
(iii) default by the Property Trustee in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, in any material respect,
of any covenant or warranty of the Issuer Trustees in such Trust Agreement
(other than a covenant or warranty a default in the performance of which or
the breach of which is dealt with in clause (ii) or (iii) above), and
continuation of such default or breach for a period of 60 days after there
has been given, by registered or certified mail, to the defaulting Issuer
Trustee or Trustees by the holders of at least 25% in aggregate liquidation
preference of the outstanding Preferred Securities of the applicable
Associates Trust, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" under such Trust Agreement; or
(v) the occurrence of certain events of bankruptcy or insolvency with
respect to the Property Trustee and the failure by the Company to appoint a
successor Property Trustee within 60 days thereof.
Within five Business Days after the occurrence of any Trust Event of
Default actually known to the Property Trustee, the Property Trustee shall
transmit notice of such Trust Event of Default to the holders of such Associates
Trust's Preferred Securities, the Administrative Trustees and the Company, as
Depositor, unless such Trust Event of Default shall have been cured or waived.
The Company, as Depositor, and the Administrative Trustees are required to file
annually with the Property Trustee a certificate as to whether or not they are
in compliance with all the conditions and covenants applicable to them under
each Trust Agreement.
If an Event of Default with respect to a Corresponding Junior Subordinated
Debt Security has occurred and is continuing, the Preferred Securities shall
have a preference over the Common Securities upon termination of each Associates
Trust as described above. See "-- Liquidation Distribution upon Dissolution."
The existence of a Trust Event of Default does not entitle the holders of
Preferred Securities to cause the redemption of the Preferred Securities.
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REMOVAL OF ISSUER TRUSTEES
Unless an Event of Default with respect to a Corresponding Junior
Subordinated Debt Security shall have occurred and be continuing, any Issuer
Trustee may be removed at any time by the holder of the Common Securities. If a
Trust Event of Default resulting from an Event of Default with respect to a
Corresponding Junior Subordinated Debt Security has occurred and is continuing,
the Property Trustee and the Delaware Trustee may be removed at such time by the
holders of a majority in Liquidation Amount of the outstanding Preferred
Securities. In no event will the holders of the Preferred Securities have the
right to vote to appoint, remove or replace the Administrative Trustees, which
voting rights are vested exclusively in the Company as the holder of the Common
Securities. No resignation or removal of an Issuer Trustee and no appointment of
a successor trustee shall be effective until the acceptance of appointment by
the successor trustee in accordance with the provisions of the applicable Trust
Agreement.
CO-TRUSTEES AND SEPARATE PROPERTY TRUSTEE
Unless a Trust Event of Default shall have occurred and be continuing, at
any time or times, for the purpose of meeting the legal requirements of the
Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Company, as the holder of the Common
Securities, and the Administrative Trustees shall have power to appoint one or
more persons either to act as a co-trustee, jointly with the Property Trustee,
of all or any part of such Trust Property, or to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such person or persons in such
capacity any property, title, right or power deemed necessary or desirable,
subject to the provisions of the applicable Trust Agreement. In case an Event of
Default with respect to a Corresponding Junior Subordinated Debt Security has
occurred and is continuing, the Property Trustee alone shall have power to make
such appointment.
MERGER OR CONSOLIDATION OF ISSUER TRUSTEES
Any corporation into which the Property Trustee, the Delaware Trustee or
any Administrative Trustee that is not a natural person 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 Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of such Trustee, shall be the successor of such Trustee under
each Trust Agreement, provided such corporation shall be otherwise qualified and
eligible.
MERGERS, CONSOLIDATIONS, CONVERSIONS, AMALGAMATIONS OR REPLACEMENTS OF THE
ASSOCIATES TRUSTS
An Associates Trust may not merge with or into, consolidate, convert into,
amalgamate, or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any corporation or other Person, except
as described below, as described in "-- Liquidation Distribution upon
Dissolution" or as described in the Prospectus Supplement with respect to the
Preferred Securities. An Associates Trust may, at the request of the Company,
with the consent of the Administrative Trustees and without the consent of the
holders of the Preferred Securities, merge with or into, consolidate, convert
into, amalgamate, or be replaced by or convey, transfer or lease its properties
and assets substantially as an entirety to a trust organized as such under the
laws of any State; provided, that (i) such successor entity either (a) expressly
assumes all of the obligations of such Associates Trust with respect to the
Preferred Securities or (b) substitutes for the Preferred Securities other
securities having substantially the same terms as the Preferred Securities (the
"Successor Securities") so long as the Successor Securities rank the same as the
Preferred Securities rank in priority with respect to distributions and payments
upon liquidation, redemption and otherwise, (ii) the Company expressly appoints
a trustee of such successor entity possessing the same powers and duties as the
Property Trustee as the holder of the Corresponding Junior Subordinated Debt
Securities, (iii) the Successor Securities are listed, or any Successor
Securities will be listed upon notification of issuance, on any national
securities exchange or other organization on which the Preferred Securities are
then listed, if any, (iv) such merger, consolidation, conversion, amalgamation,
replacement, conveyance, transfer or lease does not cause the Preferred
Securities (including any successor securities) to be downgraded by any
nationally recognized
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statistical rating organization, (v) such merger, consolidation, conversion,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the holders of the Preferred
Securities (including any Successor Securities) in any material respect, (vi)
such successor entity has a purpose substantially similar to that of the
Associates Trust, (vii) prior to such merger, consolidation, conversion,
amalgamation, replacement, conveyance, transfer or lease, the Company has
received an opinion from independent counsel to the Associates Trust experienced
in such matters to the effect that (a) such merger, consolidation, conversion,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the holders of the Preferred
Securities (including any Successor Securities) in any material respect, and (b)
following such merger, consolidation, conversion, amalgamation, replacement,
conveyance, transfer or lease, neither the Associates Trust nor such successor
entity will be required to register as an investment company under the
Investment Company Act and (viii) the Company or any permitted successor or
assignee owns all of the common securities of such successor entity and
guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee. Notwithstanding the
foregoing, an Associates Trust shall not, except with the consent of holders of
100% in Liquidation Amount of the Preferred Securities, merge with or into,
consolidate, convert into, amalgamate, or be replaced by or convey, transfer or
lease its properties and assets substantially as an entirety to any other entity
or permit any other entity to consolidate, amalgamate, merge with or into, or
replace it if such merger, consolidation, conversion, amalgamation, replacement,
conveyance, transfer or lease would cause the Associates Trust or the successor
entity to be classified as other than a grantor trust for United States Federal
income tax purposes.
VOTING RIGHTS; AMENDMENT OF EACH TRUST AGREEMENT
Except as provided below and under "Description of Guarantees -- Amendments
and Assignment" and as otherwise required by law and the applicable Trust
Agreement, the holders of the Preferred Securities will have no voting rights.
Each Trust Agreement may be amended from time to time by the Company, the
Property Trustee and the Administrative Trustees, without the consent of the
holders of the Preferred Securities (i) to cure any ambiguity, correct or
supplement any provisions in such Trust Agreement that may be inconsistent with
any other provision, or to make any other provisions with respect to matters or
questions arising under such Trust Agreement, which shall not be inconsistent
with the other provisions of such Trust Agreement or (ii) to modify, eliminate
or add to any provisions of such Trust Agreement to such extent as shall be
necessary to ensure that the Associates Trust will be classified for United
States Federal income tax purposes as a grantor trust at all times that any
Trust Securities are outstanding or to ensure that the Associates Trust will not
be required to register as an "investment company" under the Investment Company
Act; provided, however, that in the case of clause (i), such action shall not
adversely affect in any material respect the interests of any holder of Trust
Securities, and any such amendments of such Trust Agreement shall become
effective when notice thereof is given to the holders of Trust Securities. Each
Trust Agreement may be amended by the Issuer Trustees and the Company with (i)
the consent of holders representing not less than a majority (based upon
Liquidation Amounts) of the outstanding Trust Securities and (ii) receipt by the
Issuer Trustees of an opinion of counsel experienced in such matters to the
effect that such amendment or the exercise of any power granted to the Issuer
Trustees in accordance with such amendment will not affect the Associates
Trust's status as a grantor trust for United States Federal income tax purposes
or the Associates Trust's exemption from status as an "investment company" under
the Investment Company Act, provided that without the consent of each holder of
Trust Securities, such Trust Agreement may not be amended to (i) change the
amount or timing of any Distribution on the Trust Securities or otherwise
adversely affect the amount of any Distribution required to be made in respect
of the Trust Securities as of a specified date or (ii) restrict the right of a
holder of Trust Securities to institute suit for the enforcement of any such
payment on or after such date.
So long as any Corresponding Junior Subordinated Debt Securities are held
by the Property Trustee, the Issuer Trustees shall not (i) direct the time,
method and place of conducting any proceeding for any remedy available to the
Indenture Trustee under the Junior Subordinated Indenture, or executing any
trust or power conferred on the Property Trustee with respect to such
Corresponding Junior Subordinated Debt Securities,
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(ii) waive any past default that is waivable under Section 8.01 of the Junior
Subordinated Indenture, (iii) exercise any right to rescind or annul a
declaration that the principal of all the Corresponding Junior Subordinated Debt
Securities shall be due and payable or (iv) consent to any amendment,
modification or termination of the Junior Subordinated Indenture or such
Corresponding Junior Subordinated Debt Securities, where such consent shall be
required, without, in each case, obtaining the prior approval of the holders of
a majority in aggregate Liquidation Amount of all outstanding Preferred
Securities; provided, however, that where a consent under the Junior
Subordinated Indenture would require the consent of each holder of Corresponding
Junior Subordinated Debt Securities affected thereby, no such consent shall be
given by the Property Trustee without the prior consent of each holder of the
related Preferred Securities. The Issuer Trustees shall not revoke any action
previously authorized or approved by a vote of the holders of the Preferred
Securities except by subsequent vote of the holders of the Preferred Securities.
The Property Trustee shall notify each holder of Preferred Securities of any
notice of default with respect to the Corresponding Junior Subordinated Debt
Securities. In addition to obtaining the foregoing approvals of the holders of
the Preferred Securities, prior to taking any of the foregoing actions, the
Issuer Trustees shall obtain an opinion of counsel to the effect that the
Associates Trust will not be classified as a corporation for United States
Federal income tax purposes on account of such action.
Any required approval of holders of Preferred Securities may be given at a
meeting of holders of Preferred Securities convened for such purpose or pursuant
to written consent. The Property Trustee will cause a notice of any meeting at
which holders of Preferred Securities are entitled to vote to be given to each
holder of record of Preferred Securities in the manner set forth in each Trust
Agreement.
No vote or consent of the holders of Preferred Securities will be required
for an Associates Trust to redeem and cancel its Preferred Securities in
accordance with the applicable Trust Agreement.
Notwithstanding that holders of Preferred Securities are entitled to vote
or consent under any of the circumstances described above, any of the Preferred
Securities that are owned by the Company, the Issuer Trustees or any affiliate
of the Company or any Issuer Trustees, shall, for purposes of such vote or
consent, be treated as if they were not outstanding.
GLOBAL PREFERRED SECURITIES
DTC will act as securities depositary for all of the Preferred Securities
and the Corresponding Junior Subordinated Debt Securities, unless otherwise
referred to in the Prospectus Supplement relating to an offering of Preferred
Securities and any Corresponding Junior Subordinated Debt Securities. The
Preferred Securities and the Corresponding Junior Subordinated Debt Securities
will be issued only as fully-registered securities registered in the name of
Cede & Co. (DTC's nominee). One or more fully-registered Global Securities will
be issued for the Preferred Securities of each Associates Trust and the
Corresponding Junior Subordinated Debt Securities, representing in the aggregate
the total number of such Associates Trust's Preferred Securities or aggregate
principal balance of Corresponding Junior Subordinated Debt Securities,
respectively, and will be deposited with DTC.
For a description of such depositary arrangements, see "Book-Entry
Issuance." Any additional terms of the depositary arrangements with respect to a
series of Preferred Securities and any Corresponding Junior Subordinated Debt
Securities and the rights of and limitations on owners of beneficial interests
in Book-Entry Securities (as defined herein) representing all or a portion of a
series of Preferred Securities and any Corresponding Junior Subordinated Debt
Securities may be described in the Prospectus Supplement relating to such
series.
PAYMENT AND PAYING AGENCY
Payments in respect of the Preferred Securities shall be made to the
Depositary, which shall credit the relevant accounts at the Depositary on the
applicable Distribution Dates or, if any Associates Trust's Preferred Securities
are not held by the Depositary, such payments shall be made by check mailed to
the address of the holder entitled thereto as such address shall appear on the
Register. Unless otherwise specified in the applicable Prospectus Supplement,
the paying agent (the "Paying Agent") shall initially be the Property
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Trustee and any co-paying agent chosen by the Property Trustee and acceptable to
the Administrative Trustees and the Company. The Paying Agent shall be permitted
to resign as Paying Agent upon 30 days' written notice to the Property Trustee
and the Company. In the event that the Property Trustee shall no longer be the
Paying Agent, the Administrative Trustees shall appoint a successor (which shall
be a bank or trust company acceptable to the Administrative Trustees and the
Company) to act as Paying Agent.
REGISTRAR AND TRANSFER AGENT
Unless otherwise specified in the applicable Prospectus Supplement, the
Property Trustee will act as registrar and transfer agent for the Preferred
Securities.
Registration of transfers of Preferred Securities will be effected without
charge by or on behalf of each Associates Trust, but upon payment of any tax or
other governmental charges that may be imposed in connection with any transfer
or exchange. The Associates Trusts will not be required to register or cause to
be registered the transfer of their Preferred Securities after such Preferred
Securities have been called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, other than during the occurrence and continuance of a
Trust Event of Default, undertakes to perform only such duties as are
specifically set forth in each Trust Agreement and, after such Trust Event of
Default, must exercise the same degree of care and skill as a prudent person
would exercise or use in the conduct of his or her own affairs. Subject to this
provision, the Property Trustee is under no obligation to exercise any of the
powers vested in it by the applicable Trust Agreement at the request of any
holder of Preferred Securities unless it is offered reasonable indemnity against
the costs, expenses and liabilities that might be incurred thereby. If no Trust
Event of Default has occurred and is continuing and the Property Trustee is
required to decide between alternative causes of action, construe ambiguous
provisions in the applicable Trust Agreement or is unsure of the application of
any provision of the applicable Trust Agreement, and the matter is not one on
which holders of Preferred Securities are entitled under such Trust Agreement to
vote, then the Property Trustee shall take such action as is directed by the
Company and if not so directed, shall take such action as it deems advisable and
in the best interests of the holders of the Trust Securities and will have no
liability except for its own bad faith, negligence or willful misconduct.
MISCELLANEOUS
The Administrative Trustees are authorized and directed to conduct the
affairs of and to operate the Associates Trusts in such a way that no Associates
Trust will be deemed to be an "investment company" required to be registered
under the Investment Company Act or classified as an association taxable as a
corporation for United States Federal income tax purposes and so that the
Corresponding Junior Subordinated Debt Securities will be treated as
indebtedness of the Company for United States Federal income tax purposes. In
this connection, the Company and the Administrative Trustees are authorized to
take any action, not inconsistent with applicable law, the certificate of trust
of each Associates Trust or each Trust Agreement, that the Company and the
Administrative Trustees determine in their discretion to be necessary or
desirable for such purposes, as long as such action does not materially
adversely affect the interests of the holders of the related Preferred
Securities.
Holders of the Preferred Securities have no preemptive or similar rights.
No Associates Trust may borrow money or issue debt or mortgage or pledge
any of its assets.
DESCRIPTION OF GUARANTEES
A Guarantee Agreement will be executed and delivered by the Company
concurrently with the issuance by each Associates Trust of its Preferred
Securities for the benefit of the holders from time to time of such Preferred
Securities. The Chase Manhattan Bank will act as indenture trustee ("Guarantee
Trustee") under each Guarantee for the purposes of compliance with the Trust
Indenture Act, and each Guarantee will be
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qualified as an indenture under the Trust Indenture Act. This summary of certain
provisions of the Guarantees does not purport to be complete and is subject to,
and qualified in its entirety by reference to, all of the provisions of each
Guarantee Agreement, including the definitions therein of certain terms, and the
Trust Indenture Act. The form of the Guarantee has been filed as an exhibit to
the Registration Statement of which this Prospectus forms a part. Reference in
this summary to Preferred Securities means that Associates Trust's Preferred
Securities to which a Guarantee relates. The Guarantee Trustee will hold each
Guarantee for the benefit of the holders of the related Associates Trust's
Preferred Securities.
GENERAL
The Company will irrevocably agree to pay in full on a junior subordinated
basis, to the extent set forth herein, the Guarantee Payments (as defined below)
to the holders of the Preferred Securities, as and when due, regardless of any
defense, right of set-off or counterclaim that such Associates Trust may have or
assert other than the defense of payment. The following payments with respect to
the Preferred Securities, to the extent not paid by or on behalf of the related
Associates Trust (the "Guarantee Payments"), will be subject to the Guarantee:
(i) any accumulated and unpaid Distributions required to be paid on such
Preferred Securities, to the extent that such Associates Trust has funds on hand
available therefor at such time, (ii) the Redemption Price with respect to any
Preferred Securities called for redemption to the extent that such Associates
Trust has funds on hand available therefor at such time or (iii) upon a
voluntary or involuntary dissolution, winding up or liquidation of such
Associates Trust (unless the Corresponding Junior Subordinated Debt Securities
are distributed to holders of such Preferred Securities), the lesser of (a) the
Liquidation Distribution and (b) the amount of assets of such Associates Trust
remaining available for distribution to holders of Preferred Securities. The
Company's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Company to the holders of the applicable
Preferred Securities or by causing the Associates Trust to pay such amounts to
such holders.
Each Guarantee will be an irrevocable guarantee on a junior subordinated
basis of the related Associates Trust's obligations under the Preferred
Securities, but will apply only to the extent that such related Associates Trust
has funds sufficient to make such payments, and is not a guarantee of
collection.
If the Company does not make interest payments on the Corresponding Junior
Subordinated Debt Securities held by the Associates Trust, the Associates Trust
will not be able to pay Distributions on the Preferred Securities and will not
have funds legally available therefor. Each Guarantee will rank subordinate and
junior in right of payment to all Senior Indebtedness and Subordinated
Indebtedness of the Company. See "-- Status of the Guarantees." The majority of
the operating assets of the Company and its consolidated subsidiaries are owned
by such subsidiaries. The Company relies primarily on dividends from such
subsidiaries to meet its obligations for payment of principal and interest on
its outstanding debt obligations and corporate expenses. Accordingly, the
Company's obligations under the Guarantees will be effectively subordinated to
all existing and future liabilities of the Company's subsidiaries, and claimants
should look only to the assets of the Company for payments thereunder. See
"Description of Debt Securities -- General." Except as otherwise provided in the
applicable Prospectus Supplement, the Guarantees do not limit the incurrence or
issuance of other secured or unsecured debt of the Company, whether under the
Indenture, any other indenture that the Company may enter into in the future or
otherwise. See the Prospectus Supplement relating to any offering of Preferred
Securities.
The Company has also agreed to irrevocably and unconditionally guarantee
the obligations of the Associates Trusts with respect to the Common Securities
to the same extent as the Preferred Securities Guarantee, except that upon an
Event of Default with respect to a Junior Subordinated Debt Security, holders of
Preferred Securities shall have priority over holders of Common Securities with
respect to distributions and payments on liquidation, redemption or otherwise.
The Company's obligations described herein and in any accompanying
Prospectus Supplement, through the applicable Guarantee Agreement, the
applicable Trust Agreement, the Corresponding Junior Subordinated Debt
Securities, the Junior Subordinated Indenture and any supplemental indentures
thereto, taken together, constitute a full, irrevocable and unconditional
guarantee by the Company of payments due on the
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Preferred Securities. No single document standing alone or operating in
conjunction with fewer than all of the other documents constitutes such
guarantee. It is only the combined operation of these documents that has the
effect of providing a full, irrevocable and unconditional guarantee of the
Associates Trust's obligations under the Preferred Securities. See "The
Associates Trusts," "Description of Preferred Securities," and "Description of
the Debt Securities -- Subordinated Securities and Junior Subordinated Debt
Securities."
STATUS OF THE GUARANTEES
Each Guarantee will constitute an unsecured obligation of the Company and
will rank subordinate and junior in right of payment to all Senior Indebtedness
and Subordinated Indebtedness.
Each Guarantee will rank pari passu with all other Guarantees issued by the
Company relating to Preferred Securities. Each Guarantee will constitute a
guarantee of payment and not of collection (i.e., the guaranteed party may
institute a legal proceeding directly against the Guarantor to enforce its
rights under the Guarantee without first instituting a legal proceeding against
any other person or entity). Each Guarantee will be held for the benefit of the
holders of the related Preferred Securities. Each Guarantee will not be
discharged except by payment of the Guarantee Payments in full to the extent not
paid by the Associates Trust or upon distribution to the holders of the
Preferred Securities of the Corresponding Junior Subordinated Debt Securities.
None of the Guarantees places a limitation on the amount of additional Senior
Indebtedness or Subordinated Indebtedness that may be incurred by the Company.
The Company expects from time to time to incur additional indebtedness
constituting Senior Indebtedness or Subordinated Indebtedness.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not adversely affect the rights
of holders of the related Preferred Securities in any material respect (in which
case no vote will be required), no Guarantee may be amended without the prior
approval of the holders of not less than a majority of the aggregate Liquidation
Amount of such outstanding Preferred Securities. The manner of obtaining any
such approval will be as set forth under "Description of the Preferred
Securities -- Voting Rights; Amendment of Each Trust Agreement." All guarantees
and agreements contained in each Guarantee Agreement shall bind the successors,
assigns, receivers, trustees and representatives of the Company and shall inure
to the benefit of the holders of the related Preferred Securities then
outstanding.
EVENTS OF DEFAULT
An event of default under each Guarantee Agreement will occur upon the
failure of the Company to perform any of its payment or other obligations
thereunder. The holders of not less than a majority in aggregate Liquidation
Amount of the related Preferred Securities have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Guarantee Trustee in respect of such Guarantee Agreement or to direct the
exercise of any trust or power conferred upon the Guarantee Trustee under such
Guarantee Agreement.
Any holder of the Preferred Securities may institute a legal proceeding
directly against the Company to enforce its rights under such Guarantee
Agreement without first instituting a legal proceeding against the Associates
Trust, the Guarantee Trustee or any other person or entity.
The Company, as guarantor, is required to file annually with the Guarantee
Trustee a certificate as to whether or not the Company is in compliance with all
the conditions and covenants applicable to it under the Guarantee Agreement.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and continuance of
a default by the Company in performance of any Guarantee, undertakes to perform
only such duties as are specifically set forth in each Guarantee Agreement and,
after default with respect to any Guarantee, must exercise the same degree of
care and skill as a prudent person would exercise or use in the conduct of his
or her own affairs. Subject to this
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provision, the Guarantee Trustee is under no obligation to exercise any of the
powers vested in it by any Guarantee Agreement at the request of any holder of
any Preferred Securities unless it is offered reasonable indemnity against the
costs, expenses and liabilities that might be incurred thereby.
TERMINATION OF THE GUARANTEES
Each Guarantee will terminate and be of no further force and effect upon
full payment of the Redemption Price of the related Preferred Securities, upon
full payment of the amounts payable upon liquidation of the related Associates
Trust or upon distribution of Corresponding Junior Subordinated Debt Securities
to the holders of the related Preferred Securities. Each Guarantee will continue
to be effective or will be reinstated, as the case may be, if at any time any
holder of the related Preferred Securities must restore payment of any sums paid
under such Preferred Securities or such Guarantee.
GOVERNING LAW
Each Guarantee Agreement will be governed by and construed in accordance
with the laws of the State of New York.
RELATIONSHIP AMONG THE PREFERRED SECURITIES,
THE CORRESPONDING JUNIOR SUBORDINATED DEBT SECURITIES
AND THE GUARANTEES
FULL AND UNCONDITIONAL GUARANTEE
Payments of Distributions and other amounts due on the Preferred Securities
(to the extent the applicable Associates Trust has funds available for the
payment of such Distributions) are irrevocably guaranteed by the Company as and
to the extent set forth under "Description of Guarantees." Taken together, the
Company's obligations under each series of Corresponding Junior Subordinated
Debt Securities, the Junior Subordinated Indenture, the related Trust Agreement
and the related Guarantee provide, in the aggregate, a full, irrevocable and
unconditional guarantee of payments of distributions and other amounts due on
the related series of Preferred Securities. No single document standing alone or
operating in conjunction with fewer than all of the other documents constitutes
such guarantee. It is only the combined operation of these documents that has
the effect of providing a full, irrevocable and unconditional guarantee of the
Associates Trust's obligations under the Preferred Securities. If and to the
extent that the Company does not make payments on any series of Corresponding
Junior Subordinated Debt Securities, such Associates Trust will not pay
Distributions or other amounts due on its Preferred Securities. The Guarantees
do not cover payment of Distributions when the related Associates Trust does not
have sufficient funds to pay such Distributions. In such event, the remedy of a
holder of a series of Preferred Securities is to institute a legal proceeding
directly against the Company for enforcement of payment of such Distributions to
such holder. The obligations of the Company under each Guarantee are subordinate
and junior in right of payment to all Senior Indebtedness and Subordinated
Indebtedness of the Company.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due on
each series of Corresponding Junior Subordinated Debt Securities, such payments
will be sufficient to cover Distributions and other payments due on the related
Preferred Securities, primarily because (i) the aggregate principal amount of
each series of Corresponding Junior Subordinated Debt Securities will be equal
to the sum of the aggregate stated Liquidation Amount of the related Preferred
Securities and related Common Securities; (ii) the interest rate and interest
and other payment dates on each series of Corresponding Junior Subordinated Debt
Securities will match the Distribution rate and Distribution and other payment
dates for the related Preferred Securities; (iii) the Company, as borrower,
shall pay for all and any costs, expenses and liabilities of such Associates
Trust except the Associates Trust's obligations to holders of its Preferred
Securities under such
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Preferred Securities; and (iv) each Trust Agreement further provides that the
Associates Trust will not engage in any activity that is not consistent with the
limited purposes of such Associates Trust.
Notwithstanding anything to the contrary in the Junior Subordinated
Indenture, the Company has the right to set-off any payment it is otherwise
required to make thereunder with and to the extent the Company has theretofore
made, or is concurrently on the date of such payment making, a payment under the
related Guarantee Agreement.
ENFORCEMENT RIGHTS OF HOLDERS OF PREFERRED SECURITIES
A holder of any Preferred Security may institute a legal proceeding
directly against the Company to enforce its rights under the related Guarantee
Agreement without first instituting a legal proceeding against the Guarantee
Trustee, the related Associates Trust or any other person or entity.
A default or event of default under any Senior Indebtedness or Subordinated
Indebtedness of the Company would not necessarily constitute a Trust Event of
Default. However, in the event of payment defaults under, or acceleration of,
Senior Indebtedness or Subordinated Indebtedness of the Company, the
subordination provisions of the Junior Subordinated Indenture provide that no
payments may be made in respect of the Corresponding Junior Subordinated Debt
Securities until such Senior Indebtedness or Subordinated Indebtedness has been
paid in full or any payment default thereunder has been cured or waived. Failure
to make required payments on any series of Corresponding Junior Subordinated
Debt Securities would constitute a Trust Event of Default.
LIMITED PURPOSE OF ASSOCIATES TRUSTS
Each Associates Trust's Preferred Securities evidence undivided beneficial
ownership interests in the assets of such Associates Trust, and each Associates
Trust exists for the sole purposes of issuing its Preferred Securities and
Common Securities, investing the proceeds thereof in Corresponding Junior
Subordinated Debt Securities and engaging in only those other activities
necessary, convenient or incidental thereto. A principal difference between the
rights of a holder of a Preferred Security and a holder of a Corresponding
Junior Subordinated Debt Security is that a holder of a Corresponding Junior
Subordinated Debt Security is entitled to receive from the Company the principal
amount of and interest accrued on Corresponding Junior Subordinated Debt
Securities held, while a holder of Preferred Securities is entitled to receive
Distributions from such Associates Trust (or from the Company under the
applicable Guarantee Agreement) if and to the extent such Associates Trust has
funds available for the payment of such Distributions.
RIGHTS UPON DISSOLUTION
Upon any voluntary or involuntary dissolution of any Associates Trust
involving the liquidation of the Corresponding Junior Subordinated Debt
Securities, the holders of the related Preferred Securities will be entitled to
receive, out of assets held by such Associates Trust and, after satisfaction of
creditors of such Associates Trust as provided by applicable law, the
Liquidation Distribution in cash. See "Description of Preferred
Securities -- Liquidation Distribution upon Dissolution." Upon any voluntary or
involuntary liquidation or bankruptcy of the Company, the Property Trustee, as
holder of the Corresponding Junior Subordinated Debt Securities, would be a
junior subordinated creditor of the Company, subordinated in right of payment to
all Senior Indebtedness and Subordinated Indebtedness, but entitled to receive
payment in full of principal and interest, before any stockholders of the
Company receive payments or distributions. Since the Company is the guarantor
under each Guarantee Agreement and pursuant to the Junior Subordinated
Indenture, as borrower, has agreed to pay for all costs, expenses and
liabilities of each Associates Trust (other than the Associates Trust's
obligations to the holders of its Preferred Securities), the positions of a
holder of such Preferred Securities and a holder of such Corresponding Junior
Subordinated Debt Securities relative to other creditors and to stockholders of
the Company in the event of liquidation or bankruptcy of the Company are
expected to be substantially the same.
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DESCRIPTION OF STOCK PURCHASE CONTRACTS
AND STOCK PURCHASE UNITS
The Company may issue Stock Purchase Contracts, representing contracts
obligating holders to purchase from the Company, and the Company to sell to the
holders, a specified number of shares of Class A Common Stock at a future date
or dates. The price per share of Class A Common Stock may be fixed at the time
the Stock Purchase Contracts are issued or may be determined by reference to a
specific formula set forth in the Stock Purchase Contracts. The Stock Purchase
Contracts may be issued separately or as a part of units ("Stock Purchase
Units") consisting of a Stock Purchase Contract and either (x) Senior Debt
Securities, Subordinated Debt Securities or Junior Subordinated Debt Securities,
(y) debt obligations of third parties, including U.S. Treasury securities, or
(z) Preferred Securities of an Associates Trust, securing the holder's
obligations to purchase the Class A Common Stock under the Stock Purchase
Contracts. The Stock Purchase Contracts may require the Company to make periodic
payments to the holders of the Stock Purchase Units or vice versa, and such
payments may be unsecured or prefunded on some basis. The Stock Purchase
Contracts may require holders to secure their obligations thereunder in a
specified manner and in certain circumstances the Company may deliver newly
issued prepaid stock purchase contracts ("Prepaid Securities") upon release to a
holder of any collateral securing such holder's obligations under the original
Stock Purchase Contract.
The applicable Prospectus Supplement will describe the terms of any Stock
Purchase Contracts or Stock Purchase Units and, if applicable, Prepaid
Securities. The description in the Prospectus Supplement will not purport to be
complete and will be qualified in its entirety by reference to the Stock
Purchase Contracts, the collateral arrangements and depositary arrangements, if
applicable, relating to such Stock Purchase Contracts or Stock Purchase Units
and, if applicable, the Prepaid Securities and the document pursuant to which
such Prepaid Securities will be issued. Certain material United States Federal
income tax considerations applicable to the Stock Purchase Units and Stock
Purchase Contracts will be set forth in the Prospectus Supplement relating
thereto.
BOOK-ENTRY ISSUANCE
The Debt Securities, Preferred Securities and Corresponding Junior
Subordinated Debt Securities of a series may be issued in whole or in part in
the form of one or more Global Securities that will be deposited with, or on
behalf of, the Depositary identified in the Prospectus Supplement relating to
such series (the "Book-Entry Securities"). Unless otherwise indicated in the
applicable Prospectus Supplement for such series, the Depositary will be DTC.
Book-Entry Securities may be issued only in fully registered form and in either
temporary or permanent form. Unless and until it is exchanged in whole or in
part for the individual Book-Entry Securities represented thereby, a Book-Entry
Security may not be transferred except as a whole by the Depositary for such
Book-Entry 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 the
Depositary or any nominee to a successor Depositary or any nominee of such
successor.
DTC has advised the Company as follows: DTC is a limited purpose trust
company organized under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New York Uniform
Commercial Code, and a "clearing agency" registered pursuant to the provisions
of Section 17A of the Exchange Act. DTC holds securities that its Participants
deposit with DTC. DTC also facilitates the settlement among Participants of
securities transactions, such as transfers and pledges, in deposited securities
through electronic computerized book-entry changes in Participants' accounts,
thereby eliminating the need for physical movement of securities certificates.
Direct Participants include securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations ("Direct
Participants"). DTC is owned by a number of its Direct Participants and by the
New York Stock Exchange, Inc., the American Stock Exchange, Inc. and the
National Association of Securities Dealers, Inc. Access to the DTC system is
also available to others such as securities brokers and dealers, banks and trust
companies that clear through or maintain custodial relationships with Direct
Participants, either directly or indirectly ("Indirect Participants"). The rules
applicable to DTC and its Participants are on file with the Commission.
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Purchases of Book-Entry Securities within the DTC system must be made by or
through Direct Participants, which will receive a credit for the Book-Entry
Securities on DTC's records. The ownership interest of each actual purchaser of
each Book-Entry Security ("Beneficial Owner") is in turn to be recorded on the
Direct and Indirect Participants' records. Beneficial Owners will not receive
written confirmation from DTC of their purchases, but Beneficial Owners are
expected to receive written confirmations providing details of the transactions,
as well as periodic statements of their holdings, from the Direct or Indirect
Participants through which the Beneficial Owners purchased Book-Entry
Securities. Transfers of ownership interests in the Book-Entry Securities are to
be accomplished by entries made on the books of Participants acting on behalf of
Beneficial Owners. Beneficial Owners will not receive certificates representing
their ownership interests in Book-Entry Securities, except in the event that use
of the book-entry system is discontinued. The laws of some states 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.
To facilitate subsequent transfers, all Book-Entry Securities deposited by
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. The deposit of Book-Entry Securities with DTC and their registration
in the name of Cede & Co. effect no change in beneficial ownership. DTC has no
knowledge of the actual Beneficial Owners of the Book-Entry Securities; DTC's
records reflect only the identity of the Direct Participants to whose accounts
such Book-Entry Securities are credited, which may or may not be the Beneficial
Owners. The Participants will remain responsible for keeping account of their
holdings on behalf of their customers.
The Company and the Associates Trusts expect that conveyance of notices and
other communications by DTC to Direct Participants, by Direct Participants to
Indirect Participants, and by Direct Participants and Indirect Participants to
Beneficial Owners and the voting rights of Direct Participants, Indirect
Participants and Beneficial Owners will be governed by arrangements among them,
subject to any statutory or regulatory requirements as may be in effect from
time to time.
Redemption notices shall be sent to Cede & Co. as the registered holder of
the Book-Entry Securities.
Although voting with respect to the Book-Entry Securities is limited to the
holders of record of the Book-Entry Securities, in those instances in which a
vote is required, neither DTC nor Cede & Co. will itself consent or vote with
respect to Book-Entry Securities. Under its usual procedures, DTC would mail an
omnibus proxy (the "Omnibus Proxy") to the relevant Trustee as soon as possible
after the record date. The Omnibus Proxy assigns Cede & Co.'s consenting or
voting rights to those Direct Participants to whose accounts such Book-Entry
Securities are credited on the record date (identified in a listing attached to
the Omnibus Proxy).
As long as the Book-Entry Securities are held by DTC or its nominee and DTC
continues to make its same-day funds settlement system available to the Company,
all payments on the Book-Entry Securities (other than Preferred Securities or
Corresponding Junior Subordinated Debt Securities) will be made by the Company
in immediately available funds to DTC. Distribution payments on the Preferred
Securities or the Junior Subordinated Debt Securities will be made by the
relevant Trustee to DTC. The Company and the Associates Trusts have been advised
that DTC's practice is to credit Direct Participants' accounts on the relevant
payment date in accordance with their respective holdings shown on DTC's records
unless DTC has reason to believe that it will not receive payments on such
payment date. Payments by Participants to Beneficial Owners will be governed by
standing instructions and customary practices and will be the responsibility of
such Participant and not of DTC, the relevant Trustee, the Associates Trust (as
applicable) or the Company, subject to any statutory or regulatory requirements
as may be in effect from time to time. Payment on Book-Entry Securities to DTC
is the responsibility of the Company or the relevant Trustee (as applicable),
disbursement of such payments to Direct Participants is the responsibility of
DTC and disbursements of such payments to the Beneficial Owners is the
responsibility of Direct and Indirect Participants.
Unless otherwise specified in the applicable Prospectus Supplement, if a
Depositary for a series of Preferred Securities is at any time unwilling, unable
or ineligible to continue as depositary and a successor depositary is not
appointed by the Company within 90 days, the Company will issue individual
Preferred Securities of such series in exchange for the Global Security
representing such series of Preferred Securities.
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In addition, the Company may at any time and in its sole discretion, subject to
any limitations described in the Prospectus Supplement relating to such
Preferred Securities, determine not to have any Preferred Securities of such
series represented by one or more Global Securities and, in such event, will
issue individual Preferred Securities of such series in exchange for the Global
Security or Securities representing such series of Preferred Securities.
Further, if the Company so specifies with respect to the Preferred Securities of
a series, an owner of a beneficial interest in a Global Security representing
Preferred Securities of such series may, on terms acceptable to the Company, the
Property Trustee and the Depositary for such Global Security, receive individual
Preferred Securities of such series in exchange for such beneficial interests,
subject to any limitations described in the Prospectus Supplement relating to
such Preferred Securities. In any such instance, a Beneficial Owner in such
Global Security will be entitled to physical delivery of individual Preferred
Securities of the series represented by such Global Security equal in principal
amount to such beneficial interest and to have such Preferred Securities
registered in its name. Individual Preferred Securities of such series so issued
will be issued in such denominations as set forth in the accompanying Prospectus
Supplement.
DTC may discontinue providing its services as securities depositary with
respect to Debt Securities at any time by giving reasonable notice to the
Company or the Indenture Trustee. Under such circumstances, if a successor
depositary is not appointed by the Company within 90 days, the Company will
issue individual definitive Debt Securities in exchange for all the Global
Securities representing such Debt Securities. In addition, the Company may at
any time and in its sole discretion determine not to have the Debt Securities
represented by Global Securities and, in such event, will issue individual
definitive Debt Securities in exchange for all the Global Securities
representing the Debt Securities. Individual definitive Debt Securities so
issued will be issued in denominations of $1,000 and any larger amount that is
an integral multiple of $1,000 and registered in such names as DTC shall direct.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that the Associates Trusts and the Company
believe to be accurate, but the Associates Trusts and the Company assume no
responsibility for the accuracy thereof. Neither the Associates Trusts nor the
Company has any responsibility for the performance by DTC or its Participants of
their respective obligations as described herein or under the rules and
procedures governing their respective operations.
PLAN OF DISTRIBUTION
The Company and/or any Associates Trust may sell the Securities in any one
or more of the following ways from time to time: (i) to or through underwriters
or dealers; (ii) directly to one or more purchasers; or (iii) through agents.
The Prospectus Supplement with respect to the Securities being offered thereby
sets forth the terms of the offering of such Securities, including the name or
names of any underwriters, the purchase price of such Securities and the
proceeds to the Company and/or an Associates Trust from such sale, any
underwriting discounts and other items constituting underwriters' compensation,
any initial public offering price, any discounts or concessions allowed or
reallowed or paid to dealers, and any securities exchange on which such
Securities may be listed. Only underwriters so named in the Prospectus
Supplement are deemed to be underwriters in connection with the Securities
offered thereby.
If underwriters are used in the sale, the Securities will be acquired by
the underwriters 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. The
obligations of the underwriters to purchase such Securities will be subject to
certain conditions precedent, and the underwriters will be obligated to purchase
all the Securities of the series offered by the Company's and/or the applicable
Associates Trust's Prospectus Supplement if any of such Securities are
purchased. Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
Securities may also be offered and sold, if so indicated in the Prospectus
Supplement, in connection with a remarketing upon their purchase, in accordance
with a redemption or repayment pursuant to their terms, by one or more firms
("remarketing firms") acting as principals for their own accounts or as agents
for the Company and/or an applicable Associates Trust. Any remarketing firm will
be identified and the terms of its
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agreement, if any, with the Company and its compensation will be described in
the Prospectus Supplement. Remarketing firms may be deemed to be underwriters in
connection with the Securities remarketed thereby.
Securities may also be sold directly by the Company and/or an Associates
Trust or through agents designated by the Company from time to time. Any agent
involved in the offering and sale of the Securities in respect of which this
Prospectus is delivered is named, and any commissions payable by the Company
and/or an Associates Trust to such agent are set forth, in the Prospectus
Supplement. Unless otherwise indicated in the Prospectus Supplement, any such
agent is acting on a best efforts basis for the period of its appointment.
If so indicated in the Prospectus Supplement, the Company and/or an
Associates Trust will authorize agents, underwriters or dealers to solicit
offers by certain institutional investors to purchase Securities providing for
payment and delivery on a future date specified in the Prospectus Supplement.
There may be limitations on the minimum amount which may be purchased by any
such institutional investor or on the portion of the aggregate principal amount
of the particular Securities which may be sold pursuant to such arrangements.
Institutional investors to which such offers may be made, when authorized,
include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and such other
institutions as may be approved by the Company and/or an Associates Trust. The
obligations of any such purchasers pursuant to such delayed delivery and payment
arrangements will not be subject to any conditions except (i) the purchase by an
institution of the particular Securities shall not at the time of delivery be
prohibited under the laws of any jurisdiction in the United States to which such
institution is subject, and (ii) if the particular Securities are being sold to
underwriters, the Company and/or an Associates Trust shall have sold to such
underwriters the total principal amount of such Securities less the principal
amount thereof covered by such arrangements. Underwriters will not have any
responsibility in respect of the validity of such arrangements or the
performance of the Company or such institutional investors thereunder.
If any underwriter or any selling group member intends to engage in
stabilizing, syndicate short covering transactions, penalty bids or any other
transaction in connection with the offering of Securities that may stabilize,
maintain, or otherwise affect the price of such Securities, such intention and a
description of such transactions will be described in the Prospectus Supplement.
Agents and underwriters may be entitled under agreements entered into with
the Company and/or the applicable Associates Trust to indemnification by the
Company against certain civil liabilities, including liabilities under the
Securities Act of 1933, or to contribution with respect to payments which the
agents or underwriters may be required to make in respect thereof. Agents and
underwriters may engage in transactions with, or perform services for, the
Company and its subsidiaries in the ordinary course of business.
VALIDITY OF SECURITIES
Unless otherwise indicated in the applicable Prospectus Supplements,
certain legal matters will be passed upon for the Company and the Associates
Trusts by Timothy M. Hayes or Frederic C. Liskow, each an Assistant General
Counsel of the Company, 250 East Carpenter Freeway, Irving, TX 75062-2729, for
the Associates Trusts by Richards, Layton & Finger, P.A., special Delaware
counsel to the Associates Trusts and the Company, One Rodney Square, Wilmington,
Delaware 19801 and for any underwriters by LeBoeuf, Lamb, Greene & MacRae,
L.L.P., a limited liability partnership including professional corporations, 125
West 55th Street, New York, New York 10019. Mr. Hayes and Mr. Liskow each own
shares of the Company's Class A Common Stock and have options to purchase
additional shares of such Class A Common Stock.
EXPERTS
The consolidated balance sheets as of December 31, 1997 and 1996 and the
consolidated statements of earnings, changes in stockholders' equity, and cash
flows for each of the three years in the period ended December 31, 1997,
incorporated by reference in this Prospectus, have been incorporated herein in
reliance on the report of PricewaterhouseCoopers LLP, independent accountants,
given on the authority of that firm as experts in accounting and auditing.
46
<PAGE> 48
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
Filing Fee -- Securities and Exchange Commission............ $1,917,500
Accounting Fees............................................. 125,000
Legal Fees.................................................. 150,000
Printing and Engraving...................................... 250,000*
Trustees' and Warrant Agent's Charges....................... 75,000*
Rating Agency Fees.......................................... 750,000
Blue Sky Fees and Expenses.................................. 300,000
Stock Exchange Listing Fee.................................. 150,000
Miscellaneous............................................... 82,500
----------
Total............................................. $3,850,000
==========
</TABLE>
- ---------------
* Estimated subject to future contingencies
ITEM 15. INDEMNIFICATION OF DIRECTOR AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware (the
"Delaware Law") empowers a Delaware corporation to indemnify any persons who
are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person was an officer or director
of such corporation, or is or was serving at the request of such corporation as
a director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided that such officer or
director acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the corporation's best interests, and, for criminal
proceedings, had no reasonable cause to believe his or her conduct was illegal.
A Delaware corporation may indemnify officers and directors against expenses
(including attorneys' fees) in connection with the defense or settlement of an
action by or in the right of the corporation under the same conditions, except
that no indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him or her against the
expenses which such officer or director actually and reasonably incurred.
In accordance with the Delaware Law, the Restated Certificate of
Incorporation of the Company contains a provision to limit the personal
liability of the directors of the Company for violations of their fiduciary
duty. This provision eliminates each director's liability to the Company for
violations of their fiduciary duty. This provision eliminates each director's
liability to the Company or its stockholders for monetary damages except (i) for
any breach of the director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware Law providing for liability of directors for unlawful payment of
dividends or unlawful stock purchases or redemptions, or (iv) for any
transaction from which a director derived an improper personal benefit. The
effect of this provision is to eliminate the personal liability of directors for
monetary damages for actions involving a breach of their fiduciary duty of care,
including any such actions involving gross negligence.
Pursuant to underwriting agreements filed as exhibits to registration
statements relating to underwritten offerings of securities, the underwriters
parties thereto have agreed to indemnify each officer and director of the
Company and each person, if any, who controls the Company within the meaning of
the Securities Act of 1933, against certain liabilities, including liabilities
under said Act.
The directors and officers of the Company are covered by directors' and
officers' insurance policies relating to the Company and its subsidiaries.
II-1
<PAGE> 49
The Restated Certificate of Incorporation of the Company provides for
indemnification of the officers and directors of the Company to the full extent
permitted by applicable law.
Under each Trust Agreement, the Company will agree to indemnify each of the
Issuer Trustees of the Associates Trust or any predecessor Issuer Trustee for
the Associates Trust, and to hold the Issuer Trustees harmless against, any
loss, damage, claims, 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 Agreements, 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 under the Trust Agreements.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF INSTRUMENT
------- -------------------------
<C> <S>
1.1* -- Form of Underwriting Agreement for dollar denominated
Debt Securities and Debt Warrants to be distributed in
the United States. Any Underwriting Agreement relating to
Debt Securities to be distributed outside the United
States or for Securities denominated in foreign
currencies or foreign currency units or any modified
Underwriting Agreement for dollar denominated Debt
Securities to be distributed in the United States and any
selling agency or distribution agreement with any agent
will be filed as an exhibit to a Current Report on Form
8-K and incorporated herein by reference.
1.2* -- Form of Underwriting Agreement for Equity Securities. Any
Underwriting Agreement relating to Equity Securities to
be distributed outside the United States or any modified
Underwriting Agreement for Equity Securities to be
distributed in the United States will be filed as an
exhibit to a Current Report on Form 8-K and incorporated
herein by reference.
1.3 -- Form of Underwriting Agreement for Preferred Securities,
Stock Purchase Contracts or Stock Purchase Units will be
filed as an exhibit to a Current Report on Form 8-K
incorporated herein by reference.
4.1++ -- Associates First Capital Corporation Standard
Multiple-Series Indenture Provisions dated as of
September 1, 1998.
4.2++ -- Form of Indenture for Senior Debt Securities dated as of
September 1, 1998 between the Company and The Chase
Manhattan Bank, as Trustee. The form or forms of Senior
Debt Securities with respect to each particular offering
will be filed as an exhibit to a Current Report on Form
8-K and incorporated herein by reference.
4.3++ -- Form of Indenture for Subordinated Debt Securities dated
as of September 1, 1998 between the Company and The Chase
Manhattan Bank, as Trustee. The form or forms of
Subordinated Debt Securities with respect to each
particular offering will be filed as an exhibit to a
Current Report on Form 8-K and incorporated herein by
reference.
4.4++ -- Form of Junior Subordinated Indenture dated as of
September 1, 1998 between the Company and The Chase
Manhattan Bank, as Trustee. The form or forms of Junior
Subordinated Debt Securities with respect to each
particular offering will be filed as an exhibit to a
Current Report on Form 8-K and incorporated herein by
reference.
4.5** -- Form of Indenture for Senior Debt Securities between the
Company and one or more banking institutions to be
qualified as Trustee pursuant to Section 305(b)(2) of the
Trust Indenture Act of 1939. The form or forms of Senior
Debt Securities with respect to each particular offering
will be filed as an exhibit to a Current Report on Form
8-K and incorporated herein by reference.
</TABLE>
II-2
<PAGE> 50
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF INSTRUMENT
------- -------------------------
<C> <S>
4.6*** -- Form of Indenture for Subordinated Debt Securities
between the Company and one or more banking institutions
to be qualified as Trustee pursuant to Section 305(b)(2)
of the Trust Indenture Act of 1939. The form or forms of
such Subordinated Debt Securities with respect to each
particular offering will be filed as an exhibit to a
Current Report on Form 8-K and incorporated herein by
reference.
4.7**** -- Form of Indenture for Junior Subordinated Debt Securities
between the Company and one or more banking institutions
to be qualified as Trustee pursuant to Section 305(b)(2)
of the Trust Indenture Act of 1939. The form or forms of
such Junior Subordinated Debt Securities with respect to
each particular offering will be filed as an Exhibit to a
Current Report on Form 8-K and incorporated herein by
reference.
4.8 -- The form of Warrant Agreement for Debt Securities to be
entered into between the Company and the Warrant Agent
(including form of Warrant Certificate) will be filed as
an exhibit to a Current Report on Form 8-K and
incorporated herein by reference.
4.9 -- The form of Warrant Agreement for Class A Common Stock to
be entered into between the Company and the Warrant Agent
(including form of Warrant Certificate) will be filed as
an exhibit to a Current Report on Form 8-K and
incorporated herein by reference.
4.10+ -- Rights Agreement, dated as of April 13, 1998, between the
Company and First Chicago Trust Company of New York as
Rights Agent.
4.11+++ -- Certificate of Trust of Associates First Capital Trust I.
4.12+++ -- Trust Agreement of Associates First Capital Trust I.
4.13+++ -- Certificate of Trust of Associates First Capital Trust
II.
4.14+++ -- Trust Agreement of Associates First Capital Trust II.
4.15+++ -- Certificate of Trust of Associates First Capital Trust
III.
4.16+++ -- Trust Agreement of Associates First Capital Trust III.
4.17++ -- Form of Amended and Restated Trust Agreement for
Associates First Capital Trust I, II and III.
4.18++ -- Form of Preferred Security Certificate for Associates
First Capital Trust I, Associates First Capital Trust II
and Associates First Capital Trust III (incorporated by
reference to Exhibit D of exhibit 4.17).
4.19++ -- Form of Guarantee Agreement for Associates First Capital
Trust I, II and III.
5.1++ -- Opinion and consent of Frederic C. Liskow.
5.2++ -- Opinion and consent of Richards, Layton & Finger, P.A.,
as to legality of the Preferred Securities to be issued
by Associates First Capital Trust I.
5.3++ -- Opinion and consent of Richards, Layton & Finger, P.A.,
as to legality of the Preferred Securities to be issued
by Associates First Capital Trust II.
5.4++ -- Opinion and consent of Richards, Layton & Finger, P.A.,
as to legality of the Preferred Securities to be issued
by Associates First Capital Trust III.
12 -- The computation of ratio of earnings to fixed charges for
the five fiscal years ended December 31, 1997 is
incorporated by reference to the Company's Annual Report
on Form 10-K for the fiscal year ended December 31, 1997.
The computation of ratio of earnings to fixed charges for
the six-month period ended June 30, 1998 is incorporated
by reference to the Company's Quarterly Report on Form
10-Q for the quarter ended June 30, 1998.
</TABLE>
II-3
<PAGE> 51
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF INSTRUMENT
------- -------------------------
<C> <S>
23+++ -- Consent of PricewaterhouseCoopers LLP. The consents of
Timothy M. Hayes and Frederic C. Liskow are included in
the opinion referred to in Exhibit 5.1 above. The consent
of Richards, Layton & Finger, P.A. are included in the
opinions referred to in Exhibits 5.2, 5.3 and 5.4 above.
24+++ -- Powers of Attorney.
25.1++ -- Form T-1, Statement of Eligibility under the Trust
Indenture Act of 1939 of The Chase Manhattan Bank,
Trustee, under the Indenture dated as of September 1,
1998, pursuant to which Senior Debt Securities may be
issued.
25.2+++ -- Form T-1, Statement of Eligibility under the Trust
Indenture Act of 1939 of The Chase Manhattan Bank,
Trustee, under the Indenture dated as of September 1,
1998, pursuant to which Subordinated Debt Securities may
be issued.
25.3+++ -- Form T-1, Statement of Eligibility under the Trust
Indenture Act of 1939 of The Chase Manhattan Bank under
the Junior Subordinated Indenture dated as of September
1, 1998, pursuant to which Junior Subordinated Debt
Securities may be issued.
25.4+++ -- Form T-1, Statement of Eligibility under the Trust
Indenture Act of 1939 of The Chase Manhattan Bank to act
as trustee under the Amended and Restated Trust Agreement
of Associates First Capital Trust I.
25.5+++ -- Form T-1, Statement of Eligibility under the Trust
Indenture Act of 1939 of The Chase Manhattan Bank to act
as trustee under the Amended and Restated Trust Agreement
of Associates First Capital Trust II.
25.6+++ -- Form T-1, Statement of Eligibility under the Trust
Indenture Act of 1939 of The Chase Manhattan Bank to act
as trustee under the Amended and Restated Trust Agreement
of Associates First Capital Trust III.
25.7+++ -- Form T-1, Statement of Eligibility under the Trust
Indenture Act of 1939 of The Chase Manhattan Bank under
the Guarantee for the benefit of the holders of Preferred
Securities of Associates First Capital Trust I.
25.8+++ -- Form T-1, under the Trust Indenture Act of 1939 Statement
of Eligibility of The Chase Manhattan Bank under the
Guarantee for the benefit of the holders of Preferred
Securities of Associates First Capital Trust II.
25.9+++ -- Form T-1, under the Trust Indenture Act of 1939 Statement
of Eligibility of The Chase Manhattan Bank under the
Guarantee for the benefit of the holders of Preferred
Securities of Associates First Capital Trust III.
</TABLE>
- ---------------
* Incorporated by reference to the Company's registration statement on Form
S-3 filed July 22, 1998, File No. 333-55851.
** Incorporated by reference to exhibit 4.2, except for name of Trustee.
*** Incorporated by reference to exhibit 4.3, except for name of Trustee.
**** Incorporated by reference to exhibit 4.4, except for name of Trustee.
+ Incorporated by reference to the Company's Current Report on Form 8-K dated
April 8, 1998.
++ Filed herewith.
+++ Previously filed with this Registration Statement.
II-4
<PAGE> 52
ITEM 17. UNDERTAKINGS.
The undersigned registrants hereby undertake:
(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 "Act");
(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, represents a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to 424(b) of the Act if, in the aggregate,
the changes in volume and price represent no more than a 20% change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement; provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or Form
F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the 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 the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered to which remain unsold at the
termination of the offering.
(4) That, for the purposes of determining any liability under the Act,
each filing of the registrant's annual report pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in this registration statement shall be deemed to be a new
registration statement relating to the securities being offered herein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(5) To file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of Section 310 of
the Trust Indenture Act in accordance with the rules and regulations
prescribed by the Commission under Section 305(b)(2) of the Act.
Insofar as indemnification for liabilities arising under the 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 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 registrants will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-5
<PAGE> 53
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
below certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this Amendment No. 1
to this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of Irving, State of Texas, on September
15, 1998.
ASSOCIATES FIRST CAPITAL CORPORATION
By: /s/ JOHN F. STILLO
------------------------------------
Title: Senior Vice President
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to this Registration Statement has been signed below by the following
persons in the capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
KEITH W. HUGHES* Chairman of the Board, Chief
- --------------------------------------------------- Executive Officer and a
(Keith W. Hughes) Director
HAROLD D. MARSHALL* President, Chief Operating
- --------------------------------------------------- Officer and a Director
(Harold D. Marshall)
J. CARTER BACOT* Director
- ---------------------------------------------------
(J. Carter Bacot)
ERIC S. DOBKIN* Director
- ---------------------------------------------------
(Eric S. Dobkin)
ROY A. GUTHRIE* Senior Executive Vice September 15, 1998
- --------------------------------------------------- President, Chief Financial
(Roy A. Guthrie) Officer and a Director
WILLIAM M. ISAAC* Director
- ---------------------------------------------------
(William M. Isaac)
H. JAMES TOFFEY* Director
- ---------------------------------------------------
(H. James Toffey)
/s/ JOHN F. STILLO Senior Vice President,
- --------------------------------------------------- Comptroller and Principal
(John F. Stillo) Accounting Officer
</TABLE>
- ---------------
* By signing his name hereto, John F. Stillo signs this document on behalf of
each persons indicated above pursuant to powers of attorney duly executed by
such persons.
By: /s/ JOHN F. STILLO
----------------------------------
Attorney-in-fact
September 15, 1998
II-6
<PAGE> 54
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Associates
First Capital Trust I, Associates First Capital Trust II and Associates First
Capital Trust III each certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this
Amendment No. 1 to this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of Irving, state of Texas,
on September 15, 1998.
ASSOCIATES FIRST CAPITAL TRUST I
By: Associates First Capital
Corporation, as Depositor
By: /s/ JOHN F. STILLO
-------------------------------------
Name: John F. Stillo
Title: Senior Vice President
ASSOCIATES FIRST CAPITAL TRUST II
By: Associates First Capital
Corporation, as Depositor
By: /s/ JOHN F. STILLO
-------------------------------------
Name: John F. Stillo
Title: Senior Vice President
ASSOCIATES FIRST CAPITAL TRUST III
By: Associates First Capital
Corporation, as Depositor
By: /s/ JOHN F. STILLO
-------------------------------------
Name: John F. Stillo
Title: Senior Vice President
II-7
<PAGE> 55
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF INSTRUMENT
------- -------------------------
<C> <S>
1.1* -- Form of Underwriting Agreement for dollar denominated
Debt Securities and Debt Warrants to be distributed in
the United States. Any Underwriting Agreement relating to
Debt Securities to be distributed outside the United
States or for Securities denominated in foreign
currencies or foreign currency units or any modified
Underwriting Agreement for dollar denominated Debt
Securities to be distributed in the United States and any
selling agency or distribution agreement with any agent
will be filed as an exhibit to a Current Report on Form
8-K and incorporated herein by reference.
1.2* -- Form of Underwriting Agreement for Equity Securities. Any
Underwriting Agreement relating to Equity Securities to
be distributed outside the United States or any modified
Underwriting Agreement for Equity Securities to be
distributed in the United States will be filed as an
exhibit to a Current Report on Form 8-K and incorporated
herein by reference.
1.3 -- Form of Underwriting Agreement for Preferred Securities,
Stock Purchase Contracts or Stock Purchase Units will be
filed as an exhibit to a Current Report on Form 8-K
incorporated herein by reference.
4.1++ -- Associates First Capital Corporation Standard
Multiple-Series Indenture Provisions dated as of
September 1, 1998.
4.2++ -- Form of Indenture for Senior Debt Securities dated as of
September 1, 1998 between the Company and The Chase
Manhattan Bank, as Trustee. The form or forms of Senior
Debt Securities with respect to each particular offering
will be filed as an exhibit to a Current Report on Form
8-K and incorporated herein by reference.
4.3++ -- Form of Indenture for Subordinated Debt Securities dated
as of September 1, 1998 between the Company and The Chase
Manhattan Bank, as Trustee. The form or forms of
Subordinated Debt Securities with respect to each
particular offering will be filed as an exhibit to a
Current Report on Form 8-K and incorporated herein by
reference.
4.4++ -- Form of Junior Subordinated Indenture dated as of
September 1, 1998 between the Company and The Chase
Manhattan Bank, as Trustee. The form or forms of Junior
Subordinated Debt Securities with respect to each
particular offering will be filed as an exhibit to a
Current Report on Form 8-K and incorporated herein by
reference.
4.5** -- Form of Indenture for Senior Debt Securities between the
Company and one or more banking institutions to be
qualified as Trustee pursuant to Section 305(b)(2) of the
Trust Indenture Act of 1939. The form or forms of Senior
Debt Securities with respect to each particular offering
will be filed as an exhibit to a Current Report on Form
8-K and incorporated herein by reference.
4.6*** -- Form of Indenture for Subordinated Debt Securities
between the Company and one or more banking institutions
to be qualified as Trustee pursuant to Section 305(b)(2)
of the Trust Indenture Act of 1939. The form or forms of
such Subordinated Debt Securities with respect to each
particular offering will be filed as an exhibit to a
Current Report on Form 8-K and incorporated herein by
reference.
</TABLE>
<PAGE> 56
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF INSTRUMENT
------- -------------------------
<C> <S>
4.7**** -- Form of Indenture for Junior Subordinated Debt Securities
between the Company and one or more banking institutions
to be qualified as Trustee pursuant to Section 305(b)(2)
of the Trust Indenture Act of 1939. The form or forms of
such Junior Subordinated Debt Securities with respect to
each particular offering will be filed as an Exhibit to a
Current Report on Form 8-K and incorporated herein by
reference.
4.8 -- The form of Warrant Agreement for Debt Securities to be
entered into between the Company and the Warrant Agent
(including form of Warrant Certificate) will be filed as
an exhibit to a Current Report on Form 8-K and
incorporated herein by reference.
4.9 -- The form of Warrant Agreement for Class A Common Stock to
be entered into between the Company and the Warrant Agent
(including form of Warrant Certificate) will be filed as
an exhibit to a Current Report on Form 8-K and
incorporated herein by reference.
4.10+ -- Rights Agreement, dated as of April 13, 1998, between the
Company and First Chicago Trust Company of New York as
Rights Agent.
4.11+++ -- Certificate of Trust of Associates First Capital Trust I.
4.12+++ -- Trust Agreement of Associates First Capital Trust I.
4.13+++ -- Certificate of Trust of Associates First Capital Trust
II.
4.14+++ -- Trust Agreement of Associates First Capital Trust II.
4.15+++ -- Certificate of Trust of Associates First Capital Trust
III.
4.16+++ -- Trust Agreement of Associates First Capital Trust III.
4.17++ -- Form of Amended and Restated Trust Agreement for
Associates First Capital Trust I, II and III.
4.18++ -- Form of Preferred Security Certificate for Associates
First Capital Trust I, Associates First Capital Trust II
and Associates First Capital Trust III (incorporated by
reference to Exhibit D of exhibit 4.17).
4.19++ -- Form of Guarantee Agreement for Associates First Capital
Trust I, II and III.
5.1++ -- Opinion and consent of Frederic C. Liskow.
5.2++ -- Opinion and consent of Richards, Layton & Finger, P.A.,
as to legality of the Preferred Securities to be issued
by Associates First Capital Trust I.
5.3++ -- Opinion and consent of Richards, Layton & Finger, P.A.,
as to legality of the Preferred Securities to be issued
by Associates First Capital Trust II.
5.4++ -- Opinion and consent of Richards, Layton & Finger, P.A.,
as to legality of the Preferred Securities to be issued
by Associates First Capital Trust III.
12 -- The computation of ratio of earnings to fixed charges for
the five fiscal years ended December 31, 1997 is
incorporated by reference to the Company's Annual Report
on Form 10-K for the fiscal year ended December 31, 1997.
The computation of ratio of earnings to fixed charges for
the six-month period ended June 30, 1998 is incorporated
by reference to the Company's Quarterly Report on Form
10-Q for the quarter ended June 30, 1998.
23+++ -- Consent of PricewaterhouseCoopers LLP. The consents of
Timothy M. Hayes and Frederic C. Liskow are included in
the opinion referred to in Exhibit 5.1 above. The consent
of Richards, Layton & Finger, P.A. are included in the
opinions referred to in Exhibits 5.2, 5.3 and 5.4 above.
24+++ -- Powers of Attorney.
</TABLE>
<PAGE> 57
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF INSTRUMENT
------- -------------------------
<C> <S>
25.1++ -- Form T-1, Statement of Eligibility under the Trust
Indenture Act of 1939 of The Chase Manhattan Bank,
Trustee, under the Indenture dated as of September 1,
1998, pursuant to which Senior Debt Securities may be
issued.
25.2+++ -- Form T-1, Statement of Eligibility under the Trust
Indenture Act of 1939 of The Chase Manhattan Bank,
Trustee, under the Indenture dated as of September 1,
1998, pursuant to which Subordinated Debt Securities may
be issued.
25.3+++ -- Form T-1, Statement of Eligibility under the Trust
Indenture Act of 1939 of The Chase Manhattan Bank under
the Junior Subordinated Indenture dated as of September
1, 1998, pursuant to which Junior Subordinated Debt
Securities may be issued.
25.4+++ -- Form T-1, Statement of Eligibility under the Trust
Indenture Act of 1939 of The Chase Manhattan Bank to act
as trustee under the Amended and Restated Trust Agreement
of Associates First Capital Trust I.
25.5+++ -- Form T-1, Statement of Eligibility under the Trust
Indenture Act of 1939 of The Chase Manhattan Bank to act
as trustee under the Amended and Restated Trust Agreement
of Associates First Capital Trust II.
25.6+++ -- Form T-1, Statement of Eligibility under the Trust
Indenture Act of 1939 of The Chase Manhattan Bank to act
as trustee under the Amended and Restated Trust Agreement
of Associates First Capital Trust III.
25.7+++ -- Form T-1, Statement of Eligibility under the Trust
Indenture Act of 1939 of The Chase Manhattan Bank under
the Guarantee for the benefit of the holders of Preferred
Securities of Associates First Capital Trust I.
25.8+++ -- Form T-1, under the Trust Indenture Act of 1939 Statement
of Eligibility of The Chase Manhattan Bank under the
Guarantee for the benefit of the holders of Preferred
Securities of Associates First Capital Trust II.
25.9+++ -- Form T-1, under the Trust Indenture Act of 1939 Statement
of Eligibility of The Chase Manhattan Bank under the
Guarantee for the benefit of the holders of Preferred
Securities of Associates First Capital Trust III.
</TABLE>
- ---------------
* Incorporated by reference to the Company's registration statement on Form
S-3 filed July 22, 1998, File No. 333-55851.
** Incorporated by reference to exhibit 4.2, except for name of Trustee.
*** Incorporated by reference to exhibit 4.3, except for name of Trustee.
**** Incorporated by reference to exhibit 4.4, except for name of Trustee.
+ Incorporated by reference to the Company's Current Report on Form 8-K dated
April 8, 1998.
++ Filed herewith.
+++ Previously filed with this Registration Statement.
<PAGE> 1
EXHIBIT 4.1
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
ASSOCIATES FIRST CAPITAL CORPORATION
STANDARD MULTIPLE-SERIES INDENTURE PROVISIONS
Dated as of September 1, 1998
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
ASSOCIATES FIRST CAPITAL CORPORATION
CROSS REFERENCE SHEET*
Showing the Location in the Associates First Capital Corporation Standard
Multiple-Series Indenture Provisions of the Provisions Inserted Pursuant to
Sections 310 to 318(a) inclusive of the Trust Indenture Act of 1939.
PROVISION OF
TRUST INDENTURE ACT
OF 1939 INDENTURE PROVISION
- ------------------- -------------------
<TABLE>
<C> <S> <C>
Sec. 310(a) (1), (2)........................ Sec. 9.09
(3)............................. Not applicable
(4)............................. Not applicable
(b) ............................... Sec. 9.08; Sec. 9.10(b)
(c) ............................... Not applicable
Sec. 311(a) ............................... Sec. 9.13(a)
(b) ............................... Sec. 9.13(b)
(c) ............................... Not applicable
Sec. 312(a) ............................... Sec. Sec. 7.01, 7.02(a)
(b) ............................... Sec. 7.02(b)
(c) ............................... Sec. 7.02(c)
Sec. 313(a) ............................... Sec. 7.04(a)
(b) (1)............................. Not applicable
(2)............................. Sec. 7.04(b)
(c) ............................... Sec. 7.04(c)
(d) ............................... Sec. 7.04(d)
Sec. 314(a) ............................... Sec. 7.03
(b) ............................... Not applicable
(c) ............................... Sec. 1.03
(d) ............................... Not applicable
(e) ............................... Sec. 1.03
(f) ............................... Not applicable
Sec. 315(a) (1)............................. Sec. 9.01(a)(1)
(2)............................. Sec. 9.01(a)(2)
(b) ............................... Sec. 9.02
(c) ............................... Sec. 9.01(b)
(d) ............................... Sec. 9.01(c)
(e) ............................... Sec. 8.07
Sec. 316(a) ............................... Sec. 8.01; Sec. 8.06
(b) ............................... Sec. 8.04;
(c) ............................... Sec. 10.01
Sec. 317(a) (1), (2)........................ Sec. 8.02
(b) ............................... Sec. 6.02(9), (10)
Sec. 318(a) ............................... Sec. 14.08
</TABLE>
- ---------------
* This Cross-Reference Sheet is not part of the Standard Multiple-Series
Indenture Provisions.
<PAGE> 3
ASSOCIATES FIRST CAPITAL CORPORATION
---------------------
STANDARD MULTIPLE-SERIES INDENTURE PROVISIONS
---------------------
TABLE OF CONTENTS*
ARTICLE ONE.
DEFINITIONS.
<TABLE>
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sec. 1.01. Certain terms defined; other terms defined in Trust
Indenture Act of 1939, as amended, or by reference
therein in Securities Act of 1933, as amended, to
have meanings therein assigned.................... 1
Affiliate........................................... 1
Authenticating Agent................................ 1
Authorized Newspaper................................ 1
Board of Directors.................................. 2
Board Resolution.................................... 2
Business Day........................................ 2
Company............................................. 2
Company Order and Company Request................... 2
Component Currency.................................. 2
Consolidated Net Worth.............................. 2
Consolidated Subsidiary............................. 3
Controlling Person.................................. 3
Controlling Person Subsidiary....................... 3
Conversion Date..................................... 3
Conversion Rate..................................... 3
Corporate Trust Office.............................. 3
Coupon.............................................. 4
Coupon Security..................................... 4
Depositary.......................................... 4
</TABLE>
- ---------------
* This Table of Contents does not constitute part of the Standard Multiple-
Series Indenture Provisions or have any bearing upon the interpretation of any
of its terms and provisions.
<PAGE> 4
ii
<TABLE>
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Dollar.............................................. 4
Dollar Determination Agent.......................... 4
Dollar Equivalent of the Currency Unit.............. 4
Dollar Equivalent of the Foreign Currency........... 4
ECU................................................. 4
European Communities................................ 4
Event of Default.................................... 5
Exchange Rate Officer's Certificate................. 5
Finance Business.................................... 5
Finance Subsidiary.................................. 5
Foreign Currency.................................... 5
Fully Registered Security........................... 5
Global Security..................................... 6
Holder.............................................. 6
Indebtedness........................................ 6
Indenture........................................... 6
Insurance Business.................................. 7
Insurance Subsidiary................................ 7
Interest............................................ 7
Interest Payment Date............................... 7
Junior Subordinated Indebtedness.................... 7
Market Exchange Rate................................ 7
Maturity............................................ 7
Officers' Certificate............................... 7
Official Currency Unit Exchange Rate................ 8
Opinion of Counsel.................................. 8
Original Issue Discount Security.................... 8
Outstanding (with reference to Securities).......... 8
Overdue Rate........................................ 9
Paying Agent........................................ 9
Person.............................................. 10
Place of Payment.................................... 10
Predecessor Security................................ 10
Receivables......................................... 10
Redemption Date..................................... 10
Redemption Price.................................... 10
Registered Holder................................... 11
Registered Security................................. 11
</TABLE>
<PAGE> 5
iii
<TABLE>
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<S> <C> <C>
Responsible Officer................................. 11
Securities Register and Securities Registrar........ 11
Security............................................ 11
Senior Indebtedness................................. 11
Special Committee................................... 12
Special Committee Resolution........................ 12
Specified Amount.................................... 12
Stated Maturity..................................... 12
Subordinated Indebtedness........................... 12
Subsidiary.......................................... 12
Superior Indebtedness............................... 12
Trustee............................................. 12
Trust Indenture Act................................. 13
Unregistered Security............................... 13
Valuation Date...................................... 13
sec. 1.02. Other Defined Terms................................. 13
sec. 1.03. Compliance Certificates and Opinions................ 13
ARTICLE TWO.
SECURITY FORMS.
sec. 2.01. Form Generally...................................... 14
sec. 2.02. Form of Trustee's Certificate of Authentication..... 15
sec. 2.03. Form of Trustee's Certificate of Authentication
by an Authenticating Agent........................ 15
sec. 2.04. Securities Issuable in the Form of a Global
Security.......................................... 15
ARTICLE THREE.
THE SECURITIES.
sec. 3.01. Amount Unlimited; Issuable in Series................ 17
sec. 3.02. Form and Denominations.............................. 20
sec. 3.03. Authentication and Dating........................... 20
sec. 3.04. Execution of Securities and Coupons................. 22
sec. 3.05. Registration; Registration of Transfer and
Exchange.......................................... 23
sec. 3.06. Mutilated, Destroyed, Lost or Stolen Securities
or Coupons........................................ 25
sec. 3.07. Temporary Securities................................ 26
</TABLE>
<PAGE> 6
iv
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sec. 3.08. Payment of Interest; Interest Rights Preserved...... 27
sec. 3.09. Cancellation........................................ 28
sec. 3.10. Computation of Interest............................. 28
sec. 3.11. Currency and Manner of Payments in
Respect of Securities............................. 28
sec. 3.12. Compliance with Certain Laws and Regulations........ 33
ARTICLE FOUR.
REDEMPTION OF SECURITIES.
sec. 4.01. Applicability of Article............................ 34
sec. 4.02. Notice of Redemption; Selection of Securities....... 34
sec. 4.03. Payment of Securities Called for Redemption......... 35
ARTICLE FIVE.
SINKING FUNDS.
sec. 5.01. Applicability of Article............................ 37
sec. 5.02. Satisfaction of Mandatory Sinking Fund Payments with
Securities........................................ 37
sec. 5.03. Redemption of Securities for Sinking Fund........... 37
ARTICLE SIX.
CERTAIN COVENANTS OF THE COMPANY.
sec. 6.01. Payment of Securities............................... 40
sec. 6.02. Other Covenants..................................... 40
(1) Office or Agency................................ 40
(2) Maintenance of Corporate Existence.............. 41
(3) Taxes, etc...................................... 42
(4) Books of Account................................ 42
(5) Liens, etc...................................... 42
(6) Consolidations, Mergers, etc.................... 45
</TABLE>
<PAGE> 7
v
<TABLE>
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(7) Other Instruments, etc.......................... 46
(8) Permit no Vacancy in Office of Trustee.......... 46
(9) Agreement with Paying Agent..................... 46
(10) Money for Securities Payments to be Held
in Trust............................................ 46
(11) Financial Statements, etc...................... 47
(12) Transactions with Controlling Persons.......... 48
sec. 6.03. Waiver.............................................. 48
ARTICLE SEVEN.
HOLDERS' LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE.
sec. 7.01. Semi-Annual Lists of Holders........................ 49
sec. 7.02. Preservation of Information, etc.................... 49
sec. 7.03. Periodic Reports by Company......................... 51
sec. 7.04. Trustee's Reports to Holders........................ 52
sec. 7.05. Delivery of Reports by the Trustee.................. 54
ARTICLE EIGHT.
REMEDIES OF THE TRUSTEE AND HOLDERS
ON EVENT OF DEFAULT.
sec. 8.01. Events of Default; Effect Thereof................... 54
sec. 8.02. Collection of Indebtedness by Trustee............... 57
sec. 8.03. Application of Moneys Collected by Trustee.......... 60
sec. 8.04. Limitation on Suits on Indenture; No Limitation on
Suits on Securities................................. 61
sec. 8.05. Remedies Cumulative; Delay not to Impair Rights..... 62
sec. 8.06. Directions by Holders of Securities................. 62
sec. 8.07. Undertakings for Costs.............................. 63
sec. 8.08. Waiver of Stay or Extension Laws.................... 63
sec. 8.09. Judgment Currency................................... 63
</TABLE>
<PAGE> 8
vi
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ARTICLE NINE.
CONCERNING THE TRUSTEE.
sec. 9.01. Certain Duties and Responsibilities................. 64
sec. 9.02. Notice of Defaults.................................. 65
sec. 9.03. Certain Rights of Trustee........................... 66
sec. 9.04. Not Responsible for Recitals or Issuance
of Securities....................................... 67
sec. 9.05. May Hold Securities................................. 67
sec. 9.06. Money Held in Trust................................. 67
sec. 9.07. Compensation and Reimbursement...................... 68
sec. 9.08. Disqualification; Conflicting Interests............. 68
sec. 9.09. Corporate Trustee Required; Eligibility............. 69
sec. 9.10. Resignation and Removal; Appointment of Successor... 69
sec. 9.11. Acceptance of Appointment by Successor.............. 71
sec. 9.12. Merger, Conversion, Consolidation or Succession
to Business....................................... 72
sec. 9.13. Preferential Collection of Claims Against Company... 73
(a) Segregation and Apportionment of Certain
Collections by Trust; Certain Exceptions............ 73
(b) Certain Creditor Relationships Excluded From
Segregation and Apportionment....................... 76
(c) Definitions of Certain Terms Used in this
Section..................................... 77
sec. 9.14. Appointment of Authenticating Agent................. 77
ARTICLE TEN.
CONCERNING THE HOLDERS OF SECURITIES.
sec. 10.01. Action by Holders................................... 79
sec. 10.02. Proof of Execution of Instruments by Holders
of Securities..................................... 80
sec. 10.03. Persons Deemed Owners............................... 80
sec. 10.04. Revocation of Consents; Future Holders Bound........ 81
</TABLE>
<PAGE> 9
vii
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ARTICLE ELEVEN.
HOLDERS' MEETINGS.
sec. 11.01. Purposes of Meetings................................ 81
sec. 11.02. Call of Meetings by Trustee......................... 82
sec. 11.03. Call of Meetings by Company or Holders.............. 82
sec. 11.04. Qualifications for Voting........................... 82
sec. 11.05. Regulations......................................... 82
sec. 11.06. Voting.............................................. 83
sec. 11.07. No Delay of Rights by Meeting....................... 84
ARTICLE TWELVE.
SUPPLEMENTAL INDENTURES.
sec. 12.01. Supplemental Indentures............................. 84
sec. 12.02. Notice of Supplemental Indenture.................... 87
sec. 12.03. Effect of Supplemental Indenture.................... 87
sec. 12.04. Notation on Securities and Coupons.................. 88
sec. 12.05. Issuance of Securities by Successor Corporation..... 88
ARTICLE THIRTEEN.
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS.
sec. 13.01. Satisfaction and Discharge.......................... 89
sec. 13.02. Application of Moneys............................... 90
sec. 13.03. Repayment of Moneys by Paying Agents................ 90
sec. 13.04. Unclaimed Moneys.................................... 90
ARTICLE FOURTEEN.
MISCELLANEOUS PROVISIONS.
sec. 14.01. Limitation of Individual Liability.................. 91
sec. 14.02. Successors.......................................... 91
sec. 14.03. Notice to Holders; Waiver........................... 91
sec. 14.04. Addresses for Notices............................... 92
sec. 14.05. Cross References.................................... 93
sec. 14.06. Counterparts........................................ 93
sec. 14.07. Headings Not to Affect Construction................. 93
</TABLE>
<PAGE> 10
viii
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<S> <C> <C>
sec. 14.08. Trust Indenture Act to Govern....................... 93
sec. 14.09. Legal Holidays...................................... 93
sec. 14.10. Applicable Law...................................... 93
ARTICLE FIFTEEN.
SUBORDINATION OF SECURITIES.
sec. 15.01. Subordination....................................... 94
sec. 15.02. Securities May Be Paid Prior to Dissolution, etc.... 95
sec. 15.03. Rights of the Holders of Superior Indebtedness
Not to be Impaired................................ 96
sec. 15.04. Authorization to Trustee to Take Action to
Effectuate Subordination.......................... 97
</TABLE>
<PAGE> 11
ARTICLE ONE.
DEFINITIONS.
Sec. 1.01 Certain Definitions. The terms defined in this Sec. 1.01 (except
as herein otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Sec. 1.01 (such definitions
to be applicable to both the singular and the plural form of the terms defined).
All other terms used in this Indenture which are defined in the Trust Indenture
Act, or which are by reference in such Act defined in the Securities Act of
1933, as amended (except as herein otherwise expressly provided or unless the
context otherwise requires), shall have the meanings assigned to such terms in
said Trust Indenture Act and in such Securities Act as in force at the date of
the execution of this Indenture. All accounting terms not otherwise defined
herein or in the Securities shall have the meanings assigned to them in
accordance with generally accepted accounting principles.
Affiliate:
"Affiliate" of the Company or any other obligor on the Securities shall
mean any person or corporation directly or indirectly controlling, controlled
by, or under direct or indirect common control with, the Company or such obligor
on the Securities.
Authenticating Agent:
"Authenticating Agent" shall mean any authenticating agent appointed by the
Trustee pursuant to Sec. 9.14.
Authorized Newspaper:
"Authorized Newspaper" shall mean a newspaper in an official language of
the country of publication customarily published at least once a day, and
customarily published for at least five days in each calendar week, and of
general circulation in such city or cities as may be provided elsewhere in this
Indenture or specified as contemplated by Sec. 3.01 with respect to the
Securities of any series the terms of which permit Unregistered Securities or
Coupon Securities. Where successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the same or in
different newspapers in the same city meeting the foregoing requirements and in
each case on any Business Day in such city.
<PAGE> 12
2
Board of Directors:
"Board of Directors" shall mean either the board of directors of the
Company or any duly authorized committee of that board.
Board Resolution:
"Board Resolution" shall mean 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:
"Business Day", when used in conjunction with the name of a city, shall
mean any day other than a day on which banking institutions in such city are
authorized or required by law to close, and shall otherwise mean each day of the
week which is not a day on which banking institutions at the place where any
specified act pursuant to this Indenture is to occur are authorized or required
by law to close.
Company:
"Company" shall mean Associates First Capital Corporation, a Delaware
corporation, 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 Order and Company Request:
"Company Order" and "Company Request" shall mean a written order or written
request, respectively, signed in the name of the Company, by its Chairman or a
Vice Chairman of the Board, President or a Vice President, and by its Treasurer,
Assistant Treasurer, Comptroller, an Assistant Comptroller, Secretary or an
Assistant Secretary, and delivered to the Trustee.
Component Currency:
"Component Currency": See Sec. 3.11(i).
Consolidated Net Worth:
"Consolidated Net Worth": See Sec. 6.02(5)
<PAGE> 13
3
Consolidated Subsidiary:
"Consolidated Subsidiary" shall mean every Subsidiary except any Subsidiary
the accounts of which are, with the approval of the independent accountants who
regularly audit the books of the Company, excluded from the consolidated
financial statements regularly released by the Company to the public, but any
such Subsidiary shall be deemed not to constitute a Consolidated Subsidiary only
during any period or periods for which its accounts are so excluded.
Controlling Person:
"Controlling Person" shall mean any Person who, to the knowledge of the
Company, is directly or indirectly in control of the Company, said control being
the power to direct or cause the direction of the management or policies of the
Company (whether through the ownership of voting securities, by contract or
otherwise), or is an officer, director, partner or manager of such a Person.
Controlling Person Subsidiary:
"Controlling Person Subsidiary" shall mean any corporation (other than the
Company and its Subsidiaries) of which a Controlling Person at the time owns or
controls, directly and/or through any intervening medium, more than fifty
percent (50%) of the outstanding stock having ordinary voting power.
Conversion Date:
"Conversion Date": See Sec. 3.11(e).
Conversion Rate:
"Conversion Rate": See Sec. 8.09.
Corporate Trust Office:
"Corporate Trust Office" shall mean the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered,
except that with respect to presentation of Registered Securities for payment or
for registration of transfer and exchange, presentation of Unregistered
Securities for registration and the location of the Securities Register, such
term shall mean the office or agency of the Trustee at which at any particular
time, its corporate agency business shall be conducted.
<PAGE> 14
4
Coupon:
"Coupon" shall mean any interest coupon appertaining to any Security.
Coupon Security:
"Coupon Security" shall mean any Security authenticated and delivered with
one or more Coupons appertaining thereto.
Depositary:
"Depositary" shall mean, unless otherwise specified by the Company pursuant
to either Sec. 2.04 or Sec. 3.01, with respect to Securities of any series
issuable or issued as a Global Security, The Depository Trust Company, New York,
New York, or any successor thereto registered under the Securities and Exchange
Act of 1934, as amended, or other applicable statute or regulation.
Dollar:
"Dollar" shall mean 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.
Dollar Determination Agent:
"Dollar Determination Agent" shall mean the New York clearing house bank,
if any, from time to time selected by the Trustee for purposes of Sec. 3.11.
Dollar Equivalent of the Currency Unit:
"Dollar Equivalent of the Currency Unit": See Sec. 3.11(h).
Dollar Equivalent of the Foreign Currency:
"Dollar Equivalent of the Foreign Currency": See Sec. 3.11(g).
ECU:
"ECU" shall mean the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
European Communities:
"European Communities" shall mean the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
<PAGE> 15
5
Event of Default:
"Event of Default": See Sec. 8.01.
Exchange Rate Officer's Certificate:
"Exchange Rate Officer's Certificate" shall mean a telex or a certificate
setting forth (i) the applicable Official Currency Unit Exchange Rate and (ii)
the Dollar or Foreign Currency amounts of principal, premium, if any, and
interest, if any, respectively (on an aggregate basis and on the basis of a
Security having a principal amount of 1,000 in the relevant currency unit),
payable on the basis of such Official Currency Unit Exchange Rate, sent (in the
case of a telex) or signed (in the case of a certificate) by the Treasurer or
any Assistant Treasurer of the Company.
Finance Business:
"Finance Business" shall mean the business of making loans, extending
credit, or providing financial accommodations to any person, firm or corporation
and such activities as may be incidental thereto, including, but not limited to:
the purchase of obligations growing out of the sale or lease of all types of
consumer, commercial and industrial property; the making of loans to individuals
and business enterprises, including the extension of wholesale or floor plan
accommodations to permit distributors and dealers to carry inventories of
durable goods for resale; factoring; leasing of tangible personal property to
others; mortgage brokerage and servicing; and other business of a similar
character to the extent that other companies similarly situated, within the
limits of sound trade practice, may have heretofore engaged or may hereafter
engage in such other business. Finance Business as herein defined shall not
include the business of a federally insured deposit-taking institution.
Finance Subsidiary:
"Finance Subsidiary" shall mean a Subsidiary primarily engaged in the
Finance Business.
Foreign Currency:
"Foreign Currency" shall mean a currency issued by the government of any
country other the United States.
Fully Registered Security:
"Fully Registered Security" shall mean any Security registered as to
principal and interest, if any.
<PAGE> 16
6
Global Security:
"Global Security" shall mean a Security issued to evidence all or a part of
any series of Securities which is executed by the Company and authenticated and
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with this Indenture and pursuant to a Company
Order, which shall be registered as to principal and interest in the name of the
Depositary or its nominee.
Holder:
"Holder" shall mean, with respect to a Registered Security, any person
whose name at the time a particular Registered Security is registered in the
Securities Register; with respect to an Unregistered Security, the bearer of
such Unregistered Security; and, with respect to a Coupon, the bearer thereof.
Indebtedness:
"Indebtedness" shall mean, with respect to a Person, (i) the principal of
and premium, if any, and interest, if any, on, (A) indebtedness of such Person
for money borrowed and (B) indebtedness evidenced by securities, notes,
debentures, bonds or other similar instruments issued by such Person; (ii) all
capital lease obligations of such Person; (iii) all obligations of such Person
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of such Person and all obligations of such Person under any
conditional sale or title retention agreement (but excluding trade accounts
payable and accrued liabilities in the ordinary course of business); (iv) all
obligations, contingent or otherwise, of such Person in respect of any letters
of credit, banker's acceptance, security purchase facilities or similar credit
transactions; (v) all obligations in respect of interest rate swap, cap, floor,
collar or other agreements, interest rate future or option contracts, currency
swap agreements, currency future or option contracts and other similar
agreements; and (vi) all obligations of the type referred to in clauses (i)
through (v) of others for the payment of which such Person is responsible or
liable as obligor, guarantor or otherwise.
Indenture:
"Indenture" shall mean this instrument as originally executed, or as it may
be amended or supplemented from time to time as herein provided, and shall
include the form and terms of particular series of Securities established as
contemplated hereunder, regardless of the currency or currency unit in which
such series is denominated.
<PAGE> 17
7
Insurance Business:
"Insurance Business" shall mean the business of issuing fire, casualty,
inland marine, ocean marine, credit, fidelity, mortgage, title, life, health or
accident insurance contracts, or other contracts authorized to be written by an
insurance company, and businesses incidental thereto.
Insurance Subsidiary:
"Insurance Subsidiary" shall mean a Subsidiary primarily engaged in the
Insurance Business.
Interest:
The term "interest" when used with respect to non-interest bearing
Securities, means interest payable after Maturity.
Interest Payment Date:
"Interest Payment Date" shall mean the Stated Maturity of an installment of
interest on the Securities of any series.
Junior Subordinated Indebtedness:
"Junior Subordinated Indebtedness" shall mean all Indebtedness of the
Company which is subordinate and junior in right of payment to Senior
Indebtedness and Subordinated Indebtedness.
Market Exchange Rate:
"Market Exchange Rate": See Sec. 3.11(i).
Maturity:
"Maturity", when used with respect to any Security, shall mean the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
Officers' Certificate:
"Officers' Certificate" shall mean a certificate signed by the Chairman or
a Vice Chairman of the Board, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Comptroller, an Assistant Comptroller,
the Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
<PAGE> 18
8
Official Currency Unit Exchange Rate:
"Official Currency Unit Exchange Rate" shall mean, with respect to any
payment to be made hereunder, the exchange rate between the relevant currency
unit and the Dollar calculated by the agency specified pursuant to Sec. 3.01 for
the Securities of the relevant series (in the case of the ECU, calculated by the
Commission of the European Communities, and currently based on the rates in
effect at 2:30 p.m., Brussels time, on the exchange markets of the Component
Currencies of the ECU), on the second Business Day (in the city of which such
agency has its principal office) immediately preceding the applicable payment
date.
Opinion of Counsel:
"Opinion of Counsel" shall mean an opinion in writing signed by legal
counsel, who may be an employee of or of counsel to the Company.
Original Issue Discount Security:
"Original Issue Discount Security" shall mean 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 Sec. 8.01.
Outstanding:
"Outstanding", when used with reference to Securities, shall mean, as of
any particular time, all Securities authenticated and delivered by the Trustee
under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount and in the required currency or
currency unit shall have been deposited in trust with the Trustee or with
any Paying Agent (other than the Company or any other obligor on the
Securities) or shall have been set aside and segregated in trust by the
Company or any other obligor on the Securities (if the Company or any other
obligor on the Securities shall act as its own Paying Agent) for the
Holders of such Securities and any Coupons appertaining thereto, provided
that if such Securities are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as in Article Four
<PAGE> 19
9
provided, or provision satisfactory to the Trustee shall have been made for
giving such notice; and
(c) Securities in lieu of and in substitution for which other
Securities shall have been authenticated and delivered pursuant to
Sec. 3.06, 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;
provided, however, that in determining whether the Holders of the requisite
principal amount of Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or 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 such other obligor. In determining whether the
Holders of the requisite principal amount of Outstanding Securities have given
any request, demand, authorization, direction, notice, consent or waiver
hereunder, 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 Sec. 8.01.
Overdue Rate:
"Overdue Rate" with respect to any series of Securities shall mean the rate
designated as such in or pursuant to the resolution of the Board of Directors or
the supplemental indenture, as the case may be, relating to such series as
contemplated by Sec. 3.01.
Paying Agent:
"Paying Agent" shall mean any person authorized by the Company to pay the
principal of, or premium or interest on, any Securities on behalf of the
Company.
<PAGE> 20
10
Person:
"Person" shall mean 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:
"Place of Payment", when used with respect to the Securities of any series,
shall mean the place or places where the principal of, premium, if any, and
interest, if any, on the Securities of such series are payable as specified
pursuant to Sec. 3.01.
Predecessor Security:
"Predecessor Security" of any particular Security shall mean 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 Sec. 3.06 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
Receivables:
"Receivables" shall mean, without duplication, at any time, all notes and
accounts receivable (whether represented by open accounts, notes, mortgages,
factoring receivables, direct loan receivables, trade accounts receivable, lease
obligations or otherwise) at the time held by the Company and its Consolidated
Subsidiaries, as shown on a consolidated balance sheet of the Company and its
Consolidated Subsidiaries, other than notes and accounts receivable which have
arisen from the Insurance Business, any manufacturing business or any other
business which is not the Finance Business.
Redemption Date:
"Redemption Date" when used with respect to any Security to be redeemed
shall mean the date fixed for such redemption by or pursuant to this Indenture.
Redemption Price:
"Redemption Price" when used with respect to any Security to be redeemed
shall mean the price, in the currency or currency unit in which such Security is
denominated or which is otherwise provided for pursuant to this Indenture, at
which it is to be redeemed pursuant to this Indenture.
<PAGE> 21
11
Registered Holder:
"Registered Holder" shall mean, with respect to a Registered Security, the
Person in whose name such Security is registered in the Securities Register.
Registered Security:
"Registered Security" shall mean any Security registered as to principal.
Responsible Officer:
"Responsible Officer" when used with respect to the Trustee shall mean the
chairman of the board of directors, a vice chairman of the board of directors,
the chairman of the executive committee, the president, any vice president, the
secretary, the treasurer, any trust officer, or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of his knowledge of
and familiarity with the particular subject.
Securities Register and Securities Registrar:
"Securities Register" and "Securities Registrar": See Sec. 3.05.
Security:
"Security" or "Securities" shall have the meaning stated in the recitals of
this Indenture and more particularly shall mean any Registered or Unregistered
Securities authenticated and delivered under this Indenture.
Senior Indebtedness:
"Senior Indebtedness" shall mean all Indebtedness of the Company, unless,
in the instrument creating or evidencing the same or pursuant to which the same
is outstanding, it is provided that such obligations are not superior in right
of payment to Subordinated Indebtedness or Junior Subordinated Indebtedness or
to other Indebtedness of the Company which is pari passu with, or subordinated
to, Subordinated Indebtedness or Junior Subordinated Indebtedness.
<PAGE> 22
12
Special Committee:
"Special Committee" shall mean a committee consisting of members of the
Board of Directors of the Company as duly authorized and established by the
Board of Directors.
Special Committee Resolution:
"Special Committee Resolution" shall mean a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Special Committee and to such full form and effect on the date of
such certificates, and delivered to the Trustee.
Specified Amount:
"Specified Amount": See Sec. 3.11(i).
Stated Maturity:
"Stated Maturity" when used with respect to any Security or any installment
of interest thereon shall mean the date specified in such Security or the
Coupon, if any, representing such installment of interest as the fixed date on
which the principal of, premium, if any, or interest, if any, on such Security
is due and payable.
Subordinated Indebtedness:
"Subordinated Indebtedness" shall mean all Indebtedness of the Company
which is subordinate and junior in right of payment to Senior Indebtedness. The
term "Subordinated Indebtedness" shall not include Junior Subordinated
Indebtedness of the Company.
Subsidiary:
"Subsidiary" shall mean any corporation of which the Company at the time
owns or controls, directly and/or through any intervening medium, more than
fifty percent (50%) of the outstanding stock having ordinary voting power.
Superior Indebtedness:
"Superior Indebtedness": See Sec. 15.01, if applicable to the Securities.
Trustee:
"Trustee" shall mean the Person named as the "Trustee" in the first
paragraph of this instrument and, subject to the provisions of Article Nine,
<PAGE> 23
13
shall also include its successors and assigns. If there shall be more than one
Trustee at any one time, "Trustee" shall mean each such Trustee and shall apply
to each such Trustee only with respect to those series of Securities with
respect to which it is serving as Trustee.
Trust Indenture Act:
Except as provided in Sec. 12.01, "Trust Indenture Act" shall mean the
Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of
1990 and in force at the date of execution of this Indenture.
Unregistered Security:
"Unregistered Security" means any Security that is not registered as to
principal.
Valuation Date:
"Valuation Date": See Sec. 3.11(e).
Sec. 1.02. Other Defined Terms. Certain other terms are defined in Article
Nine.
Sec. 1.03. 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 (including any covenants
compliance with which constitutes a condition 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 (including any covenants compliance with which constitutes
a condition 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 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 (other than annual certificates provided
pursuant to Sec. 6.02(ll)) 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;
<PAGE> 24
14
(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.
ARTICLE TWO.
SECURITY FORMS.
Sec. 2.01. Forms Generally. The Securities of each series, and the Coupons
if any, to be attached thereto, shall be in substantially the form or forms as
shall be established pursuant to Sec. 3.01 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 any law or with any rules made pursuant thereto or with
any rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, and Coupons, if any, as
evidenced by their execution of the Securities and Coupons, if any.
The definitive Securities, and Coupons, if any, of each series shall be
printed, 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, subject, with respect to the Securities of any
series, to the rules of any securities exchange on which the Securities of such
series are listed.
<PAGE> 25
15
Sec. 2.02. Form of Trustee's Certificate of Authentication. The Trustee's
Certificate of Authentication on all Securities shall be in substantially the
following form:
This is one of the Securities of the series provided for under the within-
mentioned Indenture.
[NAME OF TRUSTEE]
as Trustee
By
--------------------------------
Authorized Officer
Sec. 2.03. Form of Trustee's Certificate of Authentication by an
Authenticating Agent. If at any time there shall be an Authenticating Agent
appointed with respect to any series of Securities, then the Trustee's
Certificate of Authentication by such Authenticating Agent on all Securities of
each such series shall be in substantially the following form:
[NAME OF TRUSTEE]
as Trustee
By [NAME OF AUTHENTICATING
AGENT],
Authenticating Agent
By
--------------------------------
Authorized Officer
Sec. 2.04. Securities Issuable in the Form of a Global Security.
(a) If the Company shall establish pursuant to Sec. 3.01 that the
Securities of a particular series are to be issued in whole or in part in the
form of one or more Global Securities, then the Company shall execute and the
Trustee shall, in accordance with Sec. 3.03 and the Company Order delivered to
the Trustee thereunder, authenticate and deliver, such Global Security or
Securities, which (i) shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, the Outstanding Securities of such
series to be represented by such Global Security or Securities, (ii) shall be
registered in the name of the Depositary for such Global Security or Securities
or its
<PAGE> 26
16
nominee, (iii) shall be delivered by the Trustee to the Depositary or pursuant
to the Depositary's instruction and (iv) shall bear a legend substantially to
the following effect: "Unless and until it is exchanged in whole or in part for
the individual Securities represented hereby, this Global 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."
(b) Notwithstanding any other provision of this Sec. 2.04 or of Sec. 3.05,
unless the terms of a Global Security expressly permit such Global Security to
be exchanged in whole or in part for individual Securities, a Global Security
may be transferred, in whole but not in part and in the manner provided in
Sec. 3.05, only to the Depositary or another nominee of the Depositary for such
Global Security, or to a successor Depositary for such Global Security selected
or approved by the Company or to a nominee of such successor Depositary.
(c)(i) If at any time the Depositary for a Global Security notifies the
Company that it is unwilling or unable to continue as Depositary for such Global
Security or if at any time the Depositary for the Securities for such series
shall no longer be eligible or in good standing under the Securities Exchange
Act of 1934, as amended, or other applicable statute or regulation, the Company
shall appoint a successor Depositary with respect to such Global Security. If a
successor Depositary for such Global Security 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 Sec. 3.01(17) shall no longer
be effective with respect to such Global Security and the Company will execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of individual Securities of such series in exchange for such Global
Security, will authenticate and deliver individual Securities of such series of
like tenor and terms in definitive form in an aggregate principal amount equal
to the principal amount of the Global Security in exchange for such Global
Security.
(ii) The Company may at any time and in its sole discretion determine that
the Securities of any series issued or issuable 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 individual
Securities of such series in exchange in whole or in part for such Global
Security, will authenticate and deliver individual Securities of such series of
like tenor and terms in definitive form in an aggregate principal amount equal
<PAGE> 27
17
to the principal amount of such Global Security or Securities representing such
series in exchange for such Global Security or Securities.
(iii) If specified by the Company pursuant to Sec. 3.01 with respect to
Securities issued or issuable in the form of a Global Security, the Depositary
for such Global Security may surrender such Global Security in exchange in whole
or in part for individual Securities of such series of like tenor and terms in
definitive form on such terms as are acceptable to the Company and such
Depositary. Thereupon the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge, (1) to each Person specified
by such Depositary a new Security or Securities of the same series of like tenor
and terms and of any authorized denominations as requested by such Person or the
Depositary in aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and (2) to such Depositary
a new Global Security of like tenor and terms and 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.
(iv) In any exchange provided for in any of the preceding three paragraphs,
the Company will execute and the Trustee will authenticate and deliver
individual Fully Registered Securities in authorized denominations. Upon the
exchange of a Global Security for individual Securities, such Global Security
shall be cancelled by the Trustee. Securities issued in exchange for a Global
Security pursuant to this Sec. 2.04 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. The Trustee shall deliver such Securities to the
persons in whose names such Securities are so registered.
ARTICLE THREE.
THE SECURITIES.
Sec. 3.01. Amount Unlimited; Issuable in Series. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to the authority granted in a Board Resolution or a
Special Committee Resolution or established in one or more indentures
supplemental hereto, prior to the issuance of any Securities of any series:
<PAGE> 28
18
(1) the title of the Securities of such series (which shall
distinguish the Securities of such series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the Securities of
such series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of such
series pursuant to Sec. 2.04, 3.05, 3.06, 3.07, 4.03, or 12.04);
(3) the date or dates on which such Securities may be issued;
(4) the date or dates, which may be serial, on which the principal and
premium, if any, of the Securities of such series is payable;
(5) the rate or rates, or the method of determination thereof, at
which the Securities of such 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, in the case of Registered
Securities, the record dates, if other than as set forth in Sec. 3.08, for
the determination of Holders to whom interest is payable, and whether any
special terms and conditions relating to the payment of additional amounts
in respect of payments on the Securities of such series shall in the event
of certain changes in the United States Federal income tax laws apply to
Unregistered Securities of such series or to Registered Securities of such
series;
(6) the place or places where the principal of, and premium, if any,
and interest, if any, on Securities of such series shall be payable;
(7) the provisions, if any, establishing the price or prices at which,
the period or periods within which and the terms and conditions upon which
Securities of such series may be redeemed, in whole or in part, at the
option of the Company, pursuant to any sinking fund or otherwise, and
whether any special terms and conditions of redemption shall apply to
Unregistered Securities of such series or to Registered Securities of such
series;
(8) the obligation, if any, of the Company to redeem, purchase or
repay Securities of such series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the price or prices, in
the currency or currency unit in which the Securities of such series are
payable, at which and the period or periods within which and the terms and
conditions upon which Securities of such series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligation;
<PAGE> 29
19
(9) if other than denominations of 1,000 and any integral multiple
thereof, in the currency or currency unit in which the Securities of such
series are denominated, the denominations in which Securities of such
series shall be issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of such series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Sec. 8.01
or provable in bankruptcy pursuant to Sec. 8.02;
(11) whether payment of the principal of, premium, if any, and
interest, if any, on the Securities of such series shall be with or without
deduction for taxes, assessments or governmental charges, and with or
without reimbursement of taxes, assessments or governmental charges paid by
Holders;
(12) any Events of Default with respect to the Securities of such
series, if not set forth herein;
(13) if other than the rate of interest stated in the title of the
Securities of such series, the applicable Overdue Rate;
(14) in case the Securities of such series do not bear interest, the
applicable dates for the purpose of clause (i) of Sec. 7.01;
(15) whether the Securities of such series are to be issued as
Registered Securities (with or without Coupons) or Unregistered Securities
or both, and, if Unregistered Securities or Coupon Securities are issued,
whether Unregistered Securities or Coupon Securities of such series may be
exchanged for Registered Securities or Fully Registered Securities of such
series and whether Registered Securities or Fully Registered Securities of
such series may be exchanged for Unregistered Securities of such series and
the circumstances under which and the place or places where any such
exchanges, if permitted, may be made;
(16) the currency or currencies, or currency unit or currency units,
whether Dollars or otherwise, in which the Securities of such series or any
interest or other amounts payable with respect thereto, including, without
limitation, Coupons, are to be denominated, payable, redeemable or
repurchasable, as the case may be;
(17) whether the Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities; the terms and
conditions, if any, upon which such Global Security or Securities may be
<PAGE> 30
20
exchanged in whole or in part for other individual Securities; and the
Depositary for such Global Security or Securities;
(18) if and the terms and conditions upon which the Securities of such
series may or must be converted into securities, property, cash or
obligations of the Company or exchanged for securities, property, cash or
obligations of the Company or another enterprise; and
(19) any other terms of such series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to the
authority granted in such resolution of the Board of Directors or in any such
indenture supplemental thereto.
Sec. 3.02. Form and Denominations. In the absence of any specification
pursuant to Sec. 3.01 with respect to the Securities of any series, the
Securities of such series shall be issuable as Fully Registered Securities in
denominations of $1,000 and any integral multiple thereof, and shall be payable
in Dollars.
Sec. 3.03. Authentication and Dating. At any time and from time to time
after the execution and delivery of this Indenture, the Company may deliver
Securities of any series, with appropriate Coupons, if any, attached thereto,
executed by the Company to the Trustee for authentication. Except as otherwise
provided in this Article Three, the Trustee shall thereupon authenticate and
deliver, or cause to be authenticated and delivered, said Securities to or upon
Company Order, without any further action by the Company. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, prior
to the initial authentication of such Securities, and (subject to Sec. 9.01)
shall be fully protected in relying upon:
(1) a Board Resolution or Special Committee Resolution relating
thereto and, if applicable, an appropriate record of any action taken
pursuant to such Resolution, in each case certified by the Secretary or an
Assistant Secretary of the Company;
(2) an executed supplemental indenture, if any, relating thereto;
(3) an Officers' Certificate, which shall state that all conditions
precedent provided for in this Indenture relating to the issuance of such
Securities have been complied with, that no Event of Default with respect
to any series of Securities has occurred and is continuing and that the
issuance of such Securities does not constitute and will not result in (i)
<PAGE> 31
21
any Event of Default or any event or condition, which, upon the giving of
notice or the lapse of time or both, would become an Event of Default or
(ii) any default under the provisions of any other instrument or agreement
by which the Company is bound; and
(4) an Opinion of Counsel, which shall state
(a) that the form of such Securities and Coupons, if any, has
been established by or pursuant to the authority granted in a
resolution of the Board of Directors delivered to the Trustee pursuant
to subparagraph (1) above or by a supplemental indenture as permitted
by Sec. 2.01 in conformity with the provisions of this Indenture;
(b) that the terms of such Securities and Coupons, if any, have
been established by or pursuant to Sec. 3.01 in conformity with the
provisions of this Indenture;
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute
(together with the Coupons, if any, appertaining thereto) legal, valid
and binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting the
enforcement of creditors' rights and to general equity principles;
(d) that the Company has the corporate power to issue such
Securities and Coupons, if any, and has duly taken all necessary
corporate action with respect to such issuance;
(e) that the issuance of such Securities and Coupons, if any,
will not contravene the charter or by-laws of the Company or result in
any violation of any of the terms or provisions of any law or
regulation or of any indenture, mortgage or other agreement known to
such Counsel by which the Company or any of its subsidiaries is bound;
and
(f) that all laws and requirements in respect of the execution
and delivery by the Company of such Securities and Coupons, if any,
and the related supplemental indenture, if any, have been complied
with and that authentication and delivery of such Securities and
Coupons, if any, and the execution and delivery of the related
supplemental indenture, if any, by the Trustee will not violate the
terms of the Indenture.
<PAGE> 32
22
The Trustee shall have the right to decline to authenticate and deliver any
Securities together with any Coupons appertaining thereto under this Section if
the Trustee, being advised by counsel, determines that such action may not
lawfully be taken or if the Trustee in good faith by its Board of Directors or
trustees, executive committee, or a trust committee of directors or trustees
and/or vice presidents shall determine that such action would expose the Trustee
to personal liability to existing Holders.
Each Registered Security shall be dated the date of its authentication.
Each Unregistered Security of any series shall be dated the date of its
authentication, except as otherwise provided pursuant to Sec. 3.01 with respect
to the Securities of such series.
Sec. 3.04. Execution of Securities and Coupons. The Securities and the
Coupons, if any, appertaining thereto shall be signed in the name and on behalf
of the Company by the manual or facsimile signatures of the Chairman of the
Board, any Vice Chairman, the President or any Vice President and additionally,
in the case of each Security, under its corporate seal (which may be printed,
engraved or otherwise reproduced thereon, by facsimile or otherwise) and
attested to by the Secretary or any Assistant Secretary, the signatures of whom
may be manual or facsimile. No Security or Coupon appertaining thereto shall be
entitled to the benefits of this Indenture or be valid or obligatory for any
purpose, unless there appears on such Security a certificate of authentication
substantially in the form hereinbefore recited, executed by or on behalf of the
Trustee by manual signature. Such certificate by or on behalf of the Trustee
upon any Security executed by the Company shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this Indenture.
In case any officer of the Company who shall have signed any of the
Securities or Coupons, if any, shall cease to be such officer before the
Securities or Coupons, if any, so signed shall have been authenticated (in the
case of the Securities) and delivered by or on behalf of the Trustee, or
disposed of by the Company, such Securities and Coupons, if any, appertaining
thereto nevertheless may be authenticated (in the case of the Securities) and
delivered or disposed of as though the person who signed such Securities or
Coupons, if any, had not ceased to be such officer of the Company; and any
Security or Coupon, if any, may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Security or Coupon, if
any, shall be the proper officers of the Company, although at the date of the
execution of this Indenture any such person was not such an officer.
<PAGE> 33
23
The Trustee shall not authenticate or deliver any Coupon Security until any
matured Coupons appertaining thereto have been detached and cancelled, except as
otherwise provided or permitted by this Indenture.
Sec. 3.05. Registration; Registration of Transfer and Exchange. Subject to
the conditions set forth below and to Sec. 2.04, Securities of any series may be
exchanged for a like aggregate principal amount of Securities of the same series
and having the same terms of other authorized denominations. Securities to be
exchanged shall be surrendered together, in the case of Coupon Securities, with
all unmatured Coupons and matured Coupons in default appertaining thereto, at
the offices or agencies to be maintained by the Company for such purposes as
provided in Sec. 6.02(1), and the Company shall execute and register and the
Trustee or any Authenticating Agent shall authenticate and deliver in exchange
therefor the Security or Securities which the Holder making the exchange shall
be entitled to receive.
The Company shall keep or cause to be kept, at one of said offices or
agencies, a register for each series of Securities issued hereunder which may
include Registered Securities (hereinafter collectively referred to as the
"Securities Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Registered
Securities of such series and shall register the transfer of Registered
Securities of such series as in this Article Three provided. The Securities
Register shall be in written form or in any other form capable of being
converted into written form within a reasonable time. The Trustee and the
Authenticating Agent are hereby appointed "Securities Registrars" for the
purpose of registering Registered Securities and registering transfers of
Registered Securities as herein provided. Upon due presentment for registration
of transfer of any Security of any series at any such office or agency, the
Company shall execute and register and the Trustee or any Authenticating Agent
shall authenticate and deliver in the name of the transferee or transferees a
new Registered Security or Securities of the same series for an equal aggregate
principal amount.
At the option of the Holder thereof, Securities of any series, whether
Registered Securities or Unregistered Securities, which by their terms are
registrable as to principal only or as to principal and interest, may, to the
extent and under the circumstances specified pursuant to Sec. 3.01, be exchanged
for such Registered Securities with Coupons or Fully Registered Securities of
such series, as may be issued by the terms thereof. Securities of any series,
whether Registered Securities or Unregistered Securities, which by their terms
provide for the issuance of Unregistered Securities, may not, except to the
extent and under the circumstances specified pursuant to Sec. 3.01, be exchanged
for Unregistered Securities of such series. Securities so issued in exchange for
<PAGE> 34
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other Securities shall be of like Stated Maturity. Unregistered Securities of
any series issued in exchange for Registered Securities of such series between
the record date for such Registered Securities and the next Interest Payment
Date will be issued without the Coupon relating to such Interest Payment Date,
and Unregistered Securities surrendered in exchange for Registered Securities
between such dates shall be surrendered without the Coupon relating to such
Interest Payment Date.
Upon presentation for registration of any Unregistered Security of any
series which by its terms is registrable as to principal, at the office or
agency of the Company to be maintained as provided in Sec. 6.02(1), such
Security shall be registered as to principal in the name of the Holder thereof,
and such registration shall be noted on such Security. Any Security so
registered shall be transferable on the Securities Register of the Company upon
presentation of such Security at such office or agency for similar notation
thereon, but, to the extent permitted by law, such Security may be discharged
from registration by being in a like manner transferred to bearer, whereupon
transferability by delivery shall be restored. To the extent permitted by law,
Unregistered Securities shall continue to be subject to successive registrations
and discharges from registration at the option of the Holders thereof.
Unregistered Securities and Coupons shall be transferred by delivery. All
Securities presented for registration of transfer or for exchange, redemption or
payment shall (if so required by the Company or the Securities Registrar) be
duly endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company and the Securities Registrar duly
executed by, the Holder thereof or his attorney duly authorized in writing.
Each Security issued upon registration of transfer or exchange of
Securities pursuant to this Sec. 3.05 shall be the valid obligation of the
Company, evidencing the same indebtedness and entitled to the same benefits
under this Indenture as the Security or Securities surrendered upon registration
of such transfer or exchange.
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 registration of transfer or exchange of Securities, other than
exchanges pursuant to Sec. 3.07, Sec. 4.03, or Sec. 12.04 not involving any
transfer.
The Company shall not be required (a) to issue, exchange or register the
transfer of any Securities of any series during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of such series and ending at the close of business on
the day of such
<PAGE> 35
25
mailing, or (b) to exchange or register the transfer of any Securities selected,
called or being called for redemption except, in the case of any Security to be
redeemed in part, the portion thereof not to be so redeemed.
None of the Company, the Trustee, any Paying Agent or the Securities
Registrar 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 or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Sec. 3.06. Mutilated, Destroyed, Lost or Stolen Securities or Coupons. In
case any temporary or definitive Security or Coupon shall become mutilated or be
destroyed, lost or stolen, and 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 in the case of a mutilated Security or Coupon shall, and in the case
of a lost, stolen or destroyed Security or Coupon may in its discretion,
execute, and upon a Company Request the Trustee shall authenticate and deliver,
or cause to be authenticated and delivered, a new Security (with Coupons, if
any, attached to the mutilated, destroyed, lost or stolen Security so that
neither gain or loss in interest shall result) of the same series, tenor and
principal amount, bearing a number, letter or other distinguishing symbol not
contemporaneously outstanding, or a new Coupon, as appropriate, in exchange and
substitution for the mutilated Security or Coupon, or in lieu of and in
substitution for the Security or Coupon so destroyed, lost or stolen, or if any
such Security or Coupon shall have matured or shall be about to mature, instead
of issuing a substituted Security or Coupon, the Company may pay or authorize
the payment of the same without surrender thereof (except in the case of a
mutilated Security or Coupon); provided, however, that interest represented by
Coupons shall be payable only upon presentation and surrender of those Coupons
at an office or agency located outside of the United States, unless otherwise
provided pursuant to Sec. 3.01. In every case the applicant for a substituted
Security or Coupon shall furnish to the Company and to the Trustee such security
or indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and to the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security or Coupon and of the ownership
thereof.
Upon the issuance of any substituted Security or Coupon under this
Sec. 3.06, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee and any
Authenticating Agent) connected therewith.
<PAGE> 36
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Every substituted Security or Coupon issued pursuant to the provisions of
this Sec. 3.06 by virtue of the fact that any Security is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security or Coupon shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities and
Coupons of the same series duly issued hereunder. All Securities and Coupons
shall be held and owned upon the express condition that the foregoing provisions
of this Sec. 3.06 are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities and Coupons and shall preclude
(to the extent lawful) any and all other rights or remedies with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
Sec. 3.07. Temporary Securities. Pending the preparation of definitive
Securities of any series the Company may execute and the Trustee shall
authenticate and deliver temporary Securities (printed, lithographed or
typewritten). Temporary Securities shall be issuable in any authorized
denomination and substantially in the form of the definitive Securities in lieu
of which they are issued but with such omissions, insertions and variations as
may be appropriate for temporary Securities, all as may be determined by the
Company. Every such temporary Security shall be executed by the Company and
shall be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with the same effect, as the definitive
Securities in lieu of which they are issued. Temporary Securities may be issued
as Registered Securities or Unregistered Securities, with or without one or more
Coupons attached. Without unreasonable delay the Company will execute and
deliver to the Trustee definitive Securities of such series and thereupon any or
all temporary Securities of such series may be surrendered in exchange therefor,
at the Corporate Trust Office of the Trustee, or, in the case of temporary
Securities issued in respect of Unregistered Securities of any series, at the
corporate trust office of the Trustee located in a city specified elsewhere in
this Indenture or pursuant to Sec. 3.01, and the Trustee shall authenticate and
deliver in exchange for such temporary Securities an equal aggregate principal
amount of definitive Securities of the same series with appropriate Coupons, if
any, attached. Such exchange shall be made by the Company at its own expense and
without any charge therefor except that in case of any such exchange involving
any registration of transfer the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto. Until so exchanged, the temporary Securities of any series shall in all
respects be entitled to the same benefits under this
<PAGE> 37
27
Indenture as definitive Securities of such series authenticated and delivered
hereunder.
Sec. 3.08. Payment of Interest; Interest Rights Preserved. The Holder of
any Fully Registered Securities at the close of business on any record date with
respect to any Interest Payment Date shall be entitled to receive the interest,
if any, payable on such Interest Payment Date notwithstanding the cancellation
of such Securities upon any transfer or exchange subsequent to the record date
and prior to such Interest Payment Date. In the case of Coupon Securities, the
Holder of any Coupon shall be entitled to receive the interest, if any, payable
on such Interest Payment Date, upon surrender on such Interest Payment Date of
the Coupon appertaining thereto in respect of such interest. Except as otherwise
specified as contemplated by Sec. 3.01, for Fully Registered Securities of a
particular series the term "record date" as used in this Sec. 3.08 with respect
to any Interest Payment Date shall mean the close of business on the last day of
the calendar month preceding such Interest Payment Date if such Interest Payment
Date is the fifteenth day of a calendar month and shall mean the close of
business on the fifteenth day of the calendar month preceding such Interest
Payment Date if such Interest Payment Date is the first day of a calendar month,
whether or not such day shall be a New York Business Day.
If and to the extent the Company shall default in the payment of the
interest due on such Interest Payment Date, in respect of any Fully Registered
Securities such defaulted interest shall be paid by the Company, at its election
in each case, as provided in clause (1) or (2) below:
(1) The Company may make payment of any defaulted interest to the
Holder of Fully Registered Securities at the close of business on a
subsequent record date established by notice given by mail by or on behalf
of the Company to such Holder not less than 15 days preceding such
subsequent record date, such record date to be not less than ten days
preceding the date of payment of such defaulted interest.
(2) The Company may make payment of any defaulted interest on the
Fully Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of such series 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.
Any defaulted interest payable in respect of a Coupon Security of any
series shall be payable pursuant to such procedures as may be satisfactory to
<PAGE> 38
28
the Trustee in such manner that there is no discrimination between the Holders
of Fully Registered Securities and Coupon Securities of such series, and notice
of the payment date therefor shall be given by the Trustee, in the name and at
the expense of the Company, in the manner provided in Sec. 14.03.
Subject to the foregoing provisions of this Sec. 3.08, 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.
Sec. 3.09. Cancellation. All Securities surrendered for the purpose of
payment, redemption, exchange or registration of transfer or for credit against
any sinking fund, and all Coupons surrendered for payment or exchange, shall, if
surrendered to the Company or any Paying Agent or any Securities Registrar, be
surrendered to the Trustee and promptly cancelled by it, or, if surrendered to
the Trustee, shall be promptly cancelled by it, and no Securities or Coupons
shall be issued in lieu thereof except as expressly permitted by any of the
provisions of this Indenture. The Trustee may destroy cancelled Securities and
Coupons and deliver a certificate of such destruction to the Company or, at the
written request of the Company, shall deliver such cancelled Securities and
Coupons to the Company. If the Company shall acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities or Coupons unless and until the
same are surrendered to the Trustee for cancellation.
Sec. 3.10. Computation of Interest. Except as otherwise specified as
contemplated by Sec. 3.01 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.
Sec. 3.11. Currency and Manner of Payments in Respect of Securities.
(a) With respect to Registered Securities of any series denominated in
Dollars or Foreign Currency and with respect to Registered Securities of any
series denominated in any currency unit, including, without limitation, ECU with
respect to which the Holders of Securities of such series have not made the
election provided for in paragraph (b) below, the following payment provisions
shall apply:
(1) Except as provided in subparagraph (a)(2) or in paragraph (e)
below, payment of the principal of and premium, if any, on any Registered
Security will be made at the Place of Payment by delivery of a check in the
currency or currency unit in which the Security is payable on the payment
date against surrender of such Registered Security, and any
<PAGE> 39
29
interest on any Fully Registered Security will be paid at the Place of
Payment by mailing a check in the currency or currency unit in which such
interest is payable to the Person entitled thereto at the address of such
Person appearing on the Securities Register.
(2) Payment of the principal of, premium, if any, and (with respect to
Fully Registered Securities only) interest 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) With respect to Registered Securities of any series denominated in any
currency unit, including, without limitation, ECU, the following payment
provisions shall apply, except as otherwise provided in paragraphs (e) and (f)
below:
(1) It may be provided pursuant to Sec. 3.01 with respect to the
Securities of such series that Holders shall have the option to receive
payments of principal of, premium, if any, and (with respect to Fully
Registered Securities only) interest, if any, on such Securities in any of
the currencies which may be designated for such election in such Securities
by delivering to the Trustee a written election, to be in form and
substance satisfactory to the Trustee, not later than the close of business
on the record date immediately preceding the applicable payment date. Such
election will remain in effect for such Holder until changed by the Holder
by written notice to the Trustee (but any such change must be made not
later than the close of business on the record date immediately preceding
the next payment date to be effective for the payment to be made on such
payment date and no such change may be made with respect to payments to be
made on any Security of such series with respect to which notice of
redemption has been given by the Company pursuant to Article Four). Any
Holder of any such Security who shall not have delivered any such election
to the Trustee not later than the close of business on the applicable
record date will be paid the amount due on the applicable payment date in
the relevant currency unit as provided in paragraph (a) of this Sec. 3.11.
Payment of principal of and premium, if any, shall be made on the payment
date against surrender of such Security. Payment of principal of, premium,
if any, and (with respect to Fully Registered Securities only) interest, if
any, shall be made at the Place of Payment by mailing at such location a
check, in the applicable currency or currency unit to the Person entitled
thereto at the address of such Person appearing on the Securities Register.
<PAGE> 40
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(2) Payment of the principal of, premium, if any, and (with respect to
Fully Registered Securities only) 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.
(c) Payment of the principal of and premium, if any, on any Unregistered
Security and of interest on any Coupon Security will be made unless otherwise
specified pursuant to Sec. 3.01 or Sec. 12.01(e) 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 in the currency or currency unit
in which the Security is payable (except as provided in paragraph (e) below) on
the payment date against surrender of the Unregistered 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. Except as provided in paragraph (e) below, payment
with respect to Unregistered Securities and Coupons will be made by check,
subject to any limitations on the methods of effecting such payment as shall be
specified in the terms of the Security established as provided in Sec. 3.01 and
Sec. 12.01(e) and as shall be required under applicable laws and regulations.
(d) Not later than the fourth Business Day after the record date for each
payment date, the Trustee will deliver to the Company a written notice
specifying, in the currency or currency unit in which each series of the
Securities are payable, 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 Fully Registered
Securities, Registered Securities with Coupons and Unregistered Securities and
in respect of the Registered Securities as to which the Holders of Securities
denominated in any currency unit shall have elected to be paid in another
currency as provided in paragraph (b) above. If the election referred to in
paragraph (b) above has been provided for pursuant to Sec. 3.01 and if at least
one Holder has made such election, then, not later than the eighth Business Day
following each record date the Company will deliver to the Trustee an Exchange
Rate Officer's Certificate in respect of the Dollar or Foreign Currency payments
to be made on such payment date. The Dollar or Foreign Currency amount
receivable by Holders of Registered Securities denominated in a currency unit
who have elected payment in such currency as provided in paragraph (b) above
shall be determined by the Company on the basis of the applicable Official
Currency Unit Exchange Rate set forth in the applicable Exchange Rate Officer's
Certificate.
<PAGE> 41
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(e) If a Foreign Currency in which any of the Securities are denominated or
payable ceases to be used both by the government of the country which issued
such currency and for the settlement of transactions by public institutions of
or within the international banking community, or if the ECU ceases to be used
both within the European Monetary System and for the settlement of transactions
by public institutions of or within the European Communities, or if any other
currency unit in which a Security is denominated or payable ceases to be used
for the purposes for which it was established, then with respect to each date
for the payment of principal of, premium, if any, and interest, if any, on the
applicable Securities denominated or payable in such Foreign Currency, the ECU
or such other currency unit occurring after the last date on which such Foreign
Currency, the ECU or such other currency unit was so used (the "Conversion
Date"), the Dollar shall be the currency of payment for use on each such payment
date. The Dollar amount to be paid by the Company to the Trustee and by the
Trustee or any Paying Agent to the Holders of such Securities with respect to
such payment date shall be the Dollar Equivalent of the Foreign Currency or, in
the case of a currency unit, the Dollar Equivalent of the Currency Unit as
determined by the Trustee or the Dollar Determination Agent, if any, as of the
record date (the "Valuation Date") in the manner provided in paragraphs (g) or
(h) below.
(f) If the Holder of a Registered Security denominated in a currency unit
elects payment in a specified Foreign Currency as provided for by paragraph (b)
and such Foreign Currency ceases to be used both by the government of the
country which issued such currency and for the settlement of transactions by
public institutions of or within the international banking community, such
Holder shall receive payment in such currency unit, and if ECU ceases to be used
both within the European Monetary System and for the settlement of transactions
by public institutions of or within the European Communities, or if any other
such currency unit ceases to be used for the purposes for which it was
established, such Holder shall receive payment in Dollars.
(g) The "Dollar Equivalent of the Foreign Currency" shall be determined by
the Trustee or the Dollar Determination Agent, if any, as of each Valuation Date
and shall be obtained by converting the specified Foreign Currency into Dollars
at the Market Exchange Rate on the Valuation Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be determined by the
Trustee or the Dollar Determination Agent, if any, as of each Valuation Date and
shall be the sum obtained by adding together the results obtained by converting
the Specified Amount of each Component Currency into Dollars at the Market
Exchange Rate on the Valuation Date for such Component Currency.
<PAGE> 42
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(i) For purposes of this Sec. 3.11 the following terms shall have the
following meanings:
A "Component Currency" shall mean any currency which, on the Conversion
Date, was a component currency of the relevant currency unit, including, but not
limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the number of units
or fractions thereof which such Component Currency represented in the relevant
currency unit, including, but not limited to, the ECU, on the Conversion Date.
If after the Conversion Date the official unit of any Component Currency is
altered by way of combination or subdivision, the Specified Amount of such
Component Currency shall be divided or multiplied in the same proportion. If
after the Conversion Date two or more Component Currencies are consolidated into
a single currency, the respective Specified Amounts of such Component Currencies
shall be replaced by an amount in such single currency equal to the sum of the
respective Specified Amounts of such consolidated Component Currencies expressed
in such single currency, and such amount shall thereafter be a Specified Amount
and such single currency shall thereafter be a Component Currency. If after the
Conversion Date any Component Currency shall be divided into two or more
currencies, the Specified Amount of such Component Currency shall be replaced by
specified amounts of such two or more currencies, the sum of which, at the
Market Exchange Rate of such two or more currencies on the date of such
replacement, shall be equal to the Specified Amount of such former Component
Currency divided by the number of currencies into which such Component Currency
was divided, and such amounts shall thereafter be Specified Amounts and such
currencies shall thereafter be Component Currencies.
"Market Exchange Rate" shall mean for any currency the noon Dollar buying
rate for that currency for cable transfers quoted in New York City on the
Valuation Date as certified for customs purposes by the Federal Reserve Bank of
New York. If such rates are not available for any reason with respect to one or
more currencies for which an Exchange Rate is required, the Trustee or the
Dollar Determination Agent, if any, shall use, in its sole discretion and
without liability on its part, such quotation of the Federal Reserve Bank of New
York as of the most recent available date, or quotations from one or more major
banks in New York City or in the country of issue of the currency in question,
or such other quotations as the Trustee or the Dollar Determination Agent, if
any, shall deem appropriate. Unless otherwise specified by the Trustee or the
Dollar Determination Agent, if any, if there is more than one market for dealing
in any currency by reason of foreign exchange regulations or otherwise, the
market to be used in respect of such currency shall be that upon
<PAGE> 43
33
which a nonresident issuer of securities designated in such currency would
purchase such currency in order to make payments in respect of such securities.
All decisions and determinations of the Trustee or the Dollar Determination
Agent, if any, regarding the Dollar Equivalent of the Foreign Currency, the
Dollar Equivalent of the Currency Unit and the Market Exchange Rate shall be in
its sole discretion and shall, in the absence of manifest error, be conclusive
for all purposes and irrevocably binding upon the Company and all Holders of the
Securities and Coupons, denominated or payable in the relevant currency or
currency units. In the event that a Foreign Currency ceases to be used both by
the government of the country which issued such currency and for the settlement
of transactions by public institutions of or within the international banking
community, the Company, after learning thereof, will immediately give notice
thereof to the Trustee (and the Trustee will promptly thereafter give notice in
the manner provided in Sec. 14.03 to the Holders) specifying the Conversion
Date. In the event the ECU ceases to be used both within the European Monetary
System and for the settlement of transactions by public institutions of or
within the European Communities, or any other currency unit in which Securities
or Coupons are denominated or payable, ceases to be used for the purposes for
which it was established, the Company, after learning thereof, will immediately
give notice thereof to the Trustee (and the Trustee will promptly thereafter
give notice in the manner provided in Sec. 14.03 to the Holders) specifying the
Conversion Date and the Specified Amount of each Component Currency on the
Conversion Date. In the event of any subsequent change in any Component Currency
as set forth in the definition of Specified Amount above, the Company, after
learning thereof, will similarly give notice to the Trustee. The Trustee shall
be fully justified and protected in relying and acting upon information received
by it from the Company and the Dollar Determination Agent, if any, and shall not
otherwise have any duty or obligation to determine such information
independently.
Sec. 3.12 Compliance with Certain Laws and Regulations. If any Unregistered
Securities or Coupon 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 Unregistered Securities or Coupon Securities are sold or
resold, exchanged, transferred and paid only in compliance with such laws and
regulations and without adverse consequences to the Company.
<PAGE> 44
34
ARTICLE FOUR.
REDEMPTION OF SECURITIES.
Sec. 4.01. Applicability of Article. The provisions of this Article shall
be applicable to the Securities of any series which are redeemable before their
maturity except as otherwise specified as contemplated by Sec. 3.01 for
Securities of such series.
Sec. 4.02. Notice of Redemption; Selection of Securities. In case the
Company shall desire to exercise the right to redeem all, or, as the case may
be, any part of the Securities of any series (or all or any part of the
Unregistered Securities of such series or all or any part of the Registered
Securities of such series, if the terms and conditions of redemption shall
differ with respect to Unregistered Securities and Registered Securities of such
series as specified in the terms of such Securities established pursuant to Sec.
3.01) in accordance with their terms, it shall fix a Redemption Date and shall
provide notice of such redemption at least 30 and not more than 60 days prior to
such Redemption Date to the Trustee and to the Holders of Securities of such
series so to be redeemed as a whole or in part in the manner provided in
Sec. 14.03. The notice provided in the manner herein specified shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, failure to give such notice or any defect in
the notice to the Holder of any Security of a series designated for redemption
as a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
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 payment will be made
upon presentation and surrender of the applicable Securities, that, unless
otherwise specified in such notice, Coupon Securities of any series, if any,
surrendered for payment must be accompanied by all Coupons, if any, maturing
subsequent to the date fixed for redemption, failing which the amount of any
such missing Coupon or Coupons will be deducted from the sum due for payment,
that any interest accrued to the Redemption Date will be paid as specified in
said notice, and that on and after said 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
<PAGE> 45
35
redeemed, and, if only Unregistered Securities of any series are to be redeemed,
and if such Unregistered Securities may be exchanged for Registered Securities,
the last date on which exchanges of Unregistered 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 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 notation on such Security of the
payment of the redeemed portion thereof.
On or before (but at least one New York Business Day before, in the case of
payments made in a currency or currency unit other than Dollars) the Redemption
Date with respect to the Securities of any series stated in the notice of
redemption given as provided in this Sec. 4.02, the Company will deposit with
the Trustee or with one or more Paying Agents an amount of money in the currency
or currency unit in which the Securities of such series and any Coupons
appertaining thereto are payable (except as otherwise specified as contemplated
by Sec. 3.01 for the Securities of such series and except as provided in Sec.
3.11(b), 3.11(e) and 3.11(f) of this Indenture) sufficient to redeem on such
Redemption Date all the Securities or portions thereof so called for redemption
at the applicable Redemption Price, together with accrued interest to such
Redemption Date. If the Company is acting as its own Paying Agent, it will
segregate such amount and hold it in trust as provided in Sec. 6.02 (10).
If fewer than all the Securities of a series are to be redeemed (except in
the case of a redemption in whole of the Unregistered Securities, the Coupon
Securities, the Registered Securities or the Fully Registered Securities of such
series), the Company will give the Trustee written notice not less than 45 days
prior to the Redemption Date as to the aggregate principal amount of Securities
to be redeemed and the Trustee shall select, not more than 60 days prior to the
Redemption Date and in such manner as in its sole discretion it shall deem
appropriate and fair, the Securities of such series or portions thereof (in
multiples of 1,000 in the currency or currency unit in which the Securities of
such series are denominated, except as otherwise set forth in the applicable
form of Security) to be redeemed.
Sec. 4.03. Payment of Securities Called for Redemption. If notice of
redemption has been given as provided in Sec. 4.02 or Sec. 5.03, the Securities
or portions of Securities of the series with respect to which such notice has
been
<PAGE> 46
36
given shall become due and payable on the Redemption Date and at the place or
places stated in such notice at the applicable Redemption Price, together with
any interest accrued to such Redemption Date, and on and after said Redemption
Date (unless the Company shall default in the payment of such Securities at the
applicable Redemption Price, together with any interest accrued to said
Redemption Date) any interest on the Securities or portions of Securities of any
series so called for redemption shall cease to accrue. On presentation and
surrender of such Securities and all Coupons, if any, appertaining thereto at a
Place of Payment in such notice specified, such Securities and Coupons or the
specified portions thereof shall be paid and redeemed by the Company at the
applicable Redemption Price, together with any interest accrued thereon to the
applicable Redemption Date in the currency or currency unit in which the
Securities of such series and the Coupons, if any, appertaining thereto are
payable (except as otherwise specified as contemplated by Sec. 3.01 for the
Securities of such series and except as provided in Sec. 3.11(b), 3.11(e) and
3.11(f) of this Indenture).
If any Coupon Security surrendered for redemption shall not be accompanied
by all appurtenant Coupons maturing on or after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing Coupons or the surrender of such missing
Coupon or Coupons may be waived by the Company and the Trustee, if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to 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, unless
otherwise provided pursuant to Sec. 3.01 or Sec. 12.01(e), interest represented
by Coupons shall be payable only upon presentation and surrender of those
Coupons at an office or agency located outside of the United States.
Upon presentation of any Security redeemed in part only and the Coupons, if
any, appertaining thereto, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder thereof, at the expense of the Company, a
new Security or Securities of the same series and the Coupons, if any,
appertaining thereto, of authorized denominations, in aggregate principal amount
equal to the unredeemed portion of the Security so presented.
<PAGE> 47
37
ARTICLE FIVE.
SINKING FUNDS.
Sec. 5.01. Applicability of Article. The provisions of this Article shall
be applicable to any sinking fund for the retirement of Securities of a series
except as otherwise specified as contemplated by Sec. 3.01 for Securities of
such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment".
Sec. 5.02. Satisfaction of Mandatory Sinking Fund Payments with Securities.
In lieu of making all or any part of any mandatory sinking fund payment with
respect to any Securities of a series in cash, the Company may at its option, at
any time no more than sixteen months and no less than 45 days prior to the date
on which such sinking fund payment is due, deliver to the Trustee Securities of
such series (together with the unmatured Coupons, if any, appertaining thereto)
theretofore purchased or otherwise acquired by the Company, except Securities of
such series which have been redeemed through the application of mandatory or
optional sinking fund payments pursuant to the terms of the Securities of such
series, accompanied by a Company Order instructing the Trustee to credit such
obligations and stating that the Securities of such series were originally
issued by the Company by way of bona fide sale or other negotiation for value;
provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such mandatory sinking fund payment shall
be reduced accordingly.
Sec. 5.03. Redemption of Securities for Sinking Fund. Not less than 60 days
prior to each sinking fund payment date for any series of Securities, the
Company will deliver to the Trustee a certificate signed by the Treasurer or any
Assistant Treasurer of the Company specifying the amount of the next ensuing
sinking fund payment for such series pursuant to the terms of such series, the
portion thereof, if any, which is to be satisfied by payment of cash in the
currency or currency unit in which the Securities of such series and the
Coupons, if any, appertaining thereto, are payable (except as otherwise
specified as contemplated by Sec. 3.01 for the Securities of such series and
except as provided in Sec. 3.11(b), 3.11(e) and 3.11(f) of this Indenture) and
the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities of such series pursuant to Sec. 5.02 and whether the
Company intends
<PAGE> 48
38
to exercise its rights to make a permitted optional sinking fund payment with
respect to such series. Such certificate shall be irrevocable and upon its
delivery the Company shall be obligated to make the cash payment or payments (in
the currency or currency unit described above) therein referred to, if any, on
or before the next succeeding sinking fund payment date. In the case of the
failure of the Company to deliver such certificate (or to deliver the Securities
and Coupons, if any, specified in such certificate within the time period
specified in Sec. 5.02), the sinking fund payment due on the next succeeding
sinking fund payment date for such series shall be paid entirely in cash (in the
currency or currency unit described above) and shall be sufficient to redeem the
principal amount of the Securities of such series subject to a mandatory sinking
fund payment without the right to deliver or credit Securities as provided in
Sec. 5.02 and without the right to make any optional sinking fund payment, if
any, with respect to such series.
Any sinking fund payment or payments (mandatory or optional) made in cash
(in the currency or currency unit described above) plus any unused balance of
any preceding sinking fund payments made with respect to the Securities of any
particular series shall be applied by the Trustee (or by the Company if the
Company is acting as its own Paying Agent) on the sinking fund payment date on
which such payment is made (or, if such payment is made before a sinking fund
payment date, on the sinking fund payment date following the date of such
payment) to the redemption of Securities of such series at the Redemption Price
specified in such Securities with respect to the sinking fund together with
accrued interest, if any, to the applicable Redemption Date. Any sinking fund
moneys not so applied or allocated by the Trustee (or by the Company if the
Company is acting as its own Paying Agent) to the redemption of Securities shall
be added to the next sinking fund payment received by the Trustee (or if the
Company is acting as its own Paying Agent, segregated and held in trust as
provided in Sec. 6.02(10)) for such series and, together with such payment (or
such amount so segregated) shall be applied in accordance with the provisions of
this Sec. 5.03. Any and all sinking fund moneys with respect to the Securities
of any particular series held by the Trustee (or if the Company is acting as its
own Paying Agent, segregated and held in trust as provided in Sec. 6.02(10)) on
the last sinking fund payment date with respect to Securities of such series and
not held for the payment of redemption of particular Securities of such series
shall be applied by the Trustee (or by the Company if the Company is acting as
its own Paying Agent), together with other moneys, if necessary, to be deposited
(or segregated) sufficient for the purpose, to the payment of the principal of
the Securities of such series at Maturity. The Trustee shall not convert any
currency or currency unit in which
<PAGE> 49
39
the Securities of such series are payable for the purposes of such sinking fund
application unless specifically requested to do so by the Company, and any such
conversion agreed to by the Trustee in response to such request shall be for the
account and at the expense of the Company and shall not affect the Company's
obligation to pay the Holders in the currency or currency unit to which such
Holder may be entitled.
The Trustee shall select or cause to be selected the Securities to be
redeemed upon such sinking fund payment date in the manner specified in the last
paragraph of Sec. 4.02 and the Company shall cause notice of the redemption
thereof to be given in the manner provided in Sec. 4.02 except that the notice
of redemption shall also state that the Securities are being redeemed by
operation of the sinking fund and whether the sinking fund payment is mandatory
or optional, or both, as the case may be. Such notice having been duly given,
the redemption of such Securities shall be made upon the terms and in the manner
stated in Sec. 4.03.
On or before (but at least one New York Business Day before, in the case of
payments made in a currency or currency unit other than Dollars) each sinking
fund payment date, the Company shall pay to the Trustee (or, if the Company is
acting as its own Paying Agent, will segregate and hold in trust as provided in
Sec. 6.02(10)) in cash (in the currency or currency unit described in the first
paragraph of this Sec. 5.03) a sum equal to the principal and any interest
accrued to the Redemption Date for Securities or portions thereof to be redeemed
on such sinking fund payment date pursuant to this Section.
Neither the Trustee nor the Company shall redeem any Securities of a series
with sinking fund moneys or mail any notice of redemption of Securities of such
series by operation of the sinking fund for such series during the continuance
of a default in payment of interest, if any, on any Securities of such series or
of any Event of Default (other than an Event of Default occurring as a
consequence of this paragraph) with respect to the Securities of such series,
except that if the notice of redemption shall have been provided in accordance
with the provisions hereof, the Trustee (or the Company if the Company is acting
as its own Paying Agent) shall redeem such Securities if cash (in currency or
currency unit described in the first paragraph of this Sec. 5.03) sufficient for
that purpose shall be deposited with the Trustee (or segregated by the Company)
for that purpose in accordance with the terms of this Article. Except as
aforesaid, any moneys (in the currency or currency unit described in the first
paragraph of this Sec. 5.03) in the sinking fund for such series at the time
when any such default or Event of Default shall occur and any moneys (in the
currency or currency unit described in the first paragraph of this Sec. 5.03)
thereafter paid into such sinking fund shall, during the
<PAGE> 50
40
continuance of such default or Event of Default, be held as security for the
payment of the Securities of such series and the Coupons, if any, appertaining
thereto; provided, however, that in case such Event of Default or default shall
have been cured or waived as provided herein, such moneys (in the currency or
currency unit described in the first paragraph of this Sec. 5.03) shall
thereafter be applied on the next sinking fund payment date for the Securities
of such series on which such moneys (in the currency or currency unit described
in the first paragraph of this Sec. 5.03) may be applied pursuant to the
provisions of this Section.
ARTICLE SIX.
CERTAIN COVENANTS OF THE COMPANY.
The Company covenants and agrees for the benefit of each series of
Securities that on and after the date of execution of this Indenture and so long
as any of the Securities of such series remain outstanding:
Sec. 6.01. Payment of Securities. The Company will duly and punctually pay
or cause to be paid (in the currency or currency unit in which the Securities of
such series and Coupons, if any, appertaining thereto are payable, except as
otherwise specified as contemplated by Sec. 3.01 for the Securities of such
series and except as provided in Sec. 3.11(b), 3.11(e) and 3.11(f) of this
Indenture) the principal of, the premium, if any, and the interest, if any, on
the Securities of such series at the times and places and in the manner provided
in such Securities, any Coupons appertaining thereto, and in the Indenture.
The interest on Coupon Securities shall be payable only upon presentation
and surrender of the several Coupons for such interest installments as are
evidenced thereby as they severally mature. The interest, if any, on any
temporary Unregistered Security shall be paid, as to any installment of interest
evidenced by a Coupon attached thereto, if any, only upon presentation and
surrender of such Coupon, and, as to other installments of interest, if any,
only upon presentation of such Security for notation thereon of the payment of
such interest.
Sec. 6.02. Other Covenants. The Company --
Office or Agency:
(1) Will maintain in the Borough of Manhattan, The City of New York, an
office or agency where Registered Securities of such series may be presented or
surrendered for payment, where Securities of such 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 such series and this
<PAGE> 51
41
Indenture may be served, which office or agency shall initially be the Corporate
Trust Office of the Trustee or, if the Corporate Trust Office of the Trustee is
not located in the Borough of Manhattan, The City of New York, such office or
agency shall be the principal corporate trust office of the Authenticating Agent
designated pursuant to Sec. 9.14 hereof. So long as any Coupon Securities or
Unregistered Securities of any series remain outstanding, the Company will
(except as specified pursuant to Sec. 3.01 or Sec. 12.01(e)) maintain one or
more offices or agencies outside the United States in such city or cities as may
be specified elsewhere in this Indenture or as contemplated by Sec. 3.01, with
respect to such series where Coupons appertaining to Securities of such series
or Unregistered Securities of such series may be surrendered or presented for
payment, or surrendered for exchange pursuant to Sec. 3.05 and where notices and
demands to or upon the Company in respect of Coupons appertaining to Securities
of such series or the Unregistered Securities of such series or of this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of any such office or
agency. If at any time the Company shall fail to maintain such required office
or agency or shall fail to furnish the Trustee with the address thereof,
presentations, surrenders, notices and demands in respect of Registered
Securities may be made or served at the Corporate Trust Office of the Trustee
and the corporate trust office of any Authenticating Agent appointed hereunder,
and presentations, surrenders, notices and demands in respect of Coupons
appertaining to Securities of any series and Unregistered Securities may be made
or served at the corporate trust office of the Trustee in the other city or
cities referred to above; and the Company hereby appoints the Trustee and any
Authenticating Agent appointed hereunder its agents to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies (in or outside The City of New York) where the Securities of such
series may be presented or surrendered for any or all of such purposes, and may
from time to time rescind such designation; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain for such purposes an office or agency in the Borough of
Manhattan, The City of New York, and, except as otherwise specified pursuant to
Sec. 3.01 or Sec. 12.01(e), so long as any Unregistered Securities or Coupon
Securities remain outstanding, one or more offices or agencies outside the
United States.
Maintenance of Corporate Existence:
(2) Will at all times take or cause to be taken all such action as may from
time to time be necessary to maintain, preserve or renew its corporate existence
<PAGE> 52
42
and the corporate existence of its Subsidiaries; provided, however, that nothing
in this Sec. 6.02(2) shall prevent any merger or consolidation permitted by
Sec. 6.02(6) or any termination of the existence of any Subsidiary if such
termination is, in the judgment of the Company, in the interest of the Company
and not disadvantageous to the Holders of the Securities of any series.
Taxes, etc.:
(3) Will promptly pay and discharge or cause to be paid and discharged all
lawful taxes, assessments and governmental charges or levies imposed upon the
Company or any of its Subsidiaries or upon the income or profits of the Company
or any or its Subsidiaries, or upon any property, real, personal or mixed,
belonging to the Company or any of its Subsidiaries, or upon any part thereof,
before the same shall become in default, as well as all lawful claims for labor,
materials and supplies which, if unpaid, might become a lien or charge upon such
properties or any part thereof; provided, however, that the Company shall not be
required to pay and discharge or cause to be paid and discharged any such tax,
assessment, charge, levy or claim so long as the validity thereof shall be
contested in good faith by appropriate proceedings and the Company or such
Subsidiary, as the case may be, shall set aside on its books such reserves, if
any, as shall be deemed by it adequate with respect to any such tax, assessment,
charge, levy or claim so contested.
Books of Account:
(4) And its Subsidiaries will keep true books of record and account in
which full, true and correct entries in accordance with sound accounting
practice will be made of all dealings or transactions in relation to their
respective businesses and activities.
Liens, etc.:
(5) Will not itself and will not permit any Finance Subsidiary or any
Insurance Subsidiary to (a) create or permit to continue in existence any
mortgage, pledge, encumbrance, lien, or charge of any kind upon any of its
property or other assets, whether owned at the date hereof or hereafter
acquired, or (b) transfer any of such property or other assets for the purpose
of subjecting the same to the payment of certain obligations in priority to
payment of other obligations, or (c) acquire any property or other assets upon
any conditional sale, lease-purchase or other title retention agreement unless
in any such case under clauses (a), (b) or (c), effective provision has been
made for securing payment of the principal of, and interest on, the Securities
equally
<PAGE> 53
43
and ratably with any and all other indebtedness or other obligation which is, or
in any event may be, secured by such mortgage, pledge, encumbrance, lien or
charge, so long as any such indebtedness or other obligations shall be so
secured (it being understood that the foregoing restrictions shall not apply to
any arrangement involving the transfer of property or other assets where such
transfer is accounted for as a sale in accordance with generally accepted
accounting principles): provided, however, that the foregoing restrictions shall
not prevent:
(i) Any such Subsidiary from mortgaging or pledging all or part of its
property to the Company, or to any Finance Subsidiary or Insurance
Subsidiary;
(ii) The Company or any such Subsidiary from creating or incurring, or
suffering to exist purchase money mortgages or other purchase money liens,
or conditional sale, lease-purchase, or other title retention agreements
upon any physical property or physical assets hereafter acquired by the
Company or such Subsidiary, or from hereafter acquiring physical property
or physical assets subject to mortgages or liens existing thereon at the
date of acquisition thereof, provided that no such mortgage or lien shall
extend to or cover any other property of the Company or of such Subsidiary;
or the Company or any such Subsidiary from replacing, extending or renewing
any mortgage or lien permitted hereby upon the same property theretofore
subject thereto or replacing, extending, or renewing the indebtedness
secured thereby, provided that in any such case the principal amount of
such indebtedness so replaced, extended or renewed shall not be increased;
(iii) The Company or any such Subsidiary from acquiring a majority of
the voting stock of any corporation, all or any part of the physical
properties or physical assets of which at the date of acquisition of such
voting stock are subject to a mortgage, pledge, or other lien; or the
Company or any such Subsidiary from replacing, extending, or renewing any
such mortgage, pledge, or lien permitted hereby, or replacing, extending,
or renewing the indebtedness secured thereby, provided that in any such
case the principal amount of such indebtedness so replaced, extended, or
renewed shall not be increased;
(iv) Any such Subsidiary organized under the laws of, and operating
principally in, a country other than the United States of America, from
creating, incurring or suffering to exist any mortgage, pledge or other
lien upon any of its property of any character to secure any indebtedness
for money borrowed, in an aggregate principal amount (for each such
<PAGE> 54
44
Subsidiary) which will not cause the aggregate amount of the indebtedness
of such Subsidiary to exceed the value of the assets of such Subsidiary at
such time;
(v) Any such Subsidiary from creating, or incurring, or suffering to
exist any mortgage, pledge, or other lien upon any of its property of any
character to secure, in the ordinary course of business, its indebtedness
for money borrowed, if as a matter of practice, prior to the time it became
a Subsidiary it had borrowed on the basis of secured loans or had
customarily deposited collateral to secure any or all of its obligations;
(vi) The Company or any such Subsidiary from mortgaging, entering into
lease-purchase or other title retention agreements, or otherwise creating,
incurring or suffering to exist liens upon, any real property acquired or
constructed by the Company or any such Subsidiary primarily for use in the
conduct of its business;
(vii) The Company or any such Subsidiary from permitting to exist any
liens or encumbrances for taxes or assessments, or other governmental
charges or levies, if payment of the same is not at the time required to be
made under the other terms and provisions of this Indenture;
(viii) The Company or any such Subsidiary from making any deposit with
or giving security to any governmental agency or quasi-governmental agency
as a condition to the transaction of business or the exercise of a
privilege or license, or in order to entitle the Company, or any such
Subsidiary, to maintain self-insurance or to participate in any fund in
connection with workmen's compensation, disability benefits, unemployment
insurance, old age pensions or other types of social benefits, or to join
in any other provisions or benefits available to companies participating in
any such arrangements; or depositing assets with any Clerk of any Court, or
any surety company, or in escrow, as collateral in connection with, or in
lieu of, any bond or appeal by the Company, or any such Subsidiary, from
any judgment or decree against it, or in connection with any other
proceedings before any Court by or against the Company or any such
Subsidiary; or
(ix) The Company or any such Subsidiary from creating, permitting or
suffering to exist other liens, charges and encumbrances incidental to the
conduct of its business, or the ownership of its properties and other
assets, and securing liabilities not incurred in connection with the
borrowing of money or the obtaining of advances or credit.
<PAGE> 55
45
Notwithstanding the foregoing, the Company or any such Subsidiary may incur
mortgages, pledges, encumbrances, liens or charges on indebtedness that would be
otherwise prohibited under this Sec. 6.02(5), if the aggregate amount of
indebtedness secured by such mortgages, pledges, encumbrances, liens or charges,
together with all other indebtedness of, or guaranteed by, the Company and any
such Subsidiaries existing at such time and secured by mortgages, pledges,
encumbrances, liens or charges not excepted by (i) through (ix) above, does not
at the time exceed 15% of the Company's Consolidated Net Worth.
As used herein, "Consolidated Net Worth" shall mean the difference between
the Company's consolidated assets and consolidated liabilities as shown on the
Company's most recent audited consolidated financial statements prepared in
accordance with United States generally accepted accounting principles.
Consolidations, Mergers, etc.:
(6) Will not lease, sell, transfer or otherwise dispose of all or
substantially all of its assets to, or consolidate with, or merge into, any
other person, firm or corporation, or permit any other person, firm or
corporation to merge into the Company, unless the person, firm or corporation to
which such assets shall have been leased, sold, transferred or otherwise
disposed of or the corporation formed by such consolidation or the corporation
into which the Company shall have been merged, as the case may be (any such
person, firm or corporation, other than the Company, being herein called the
"New Company"), shall be a corporation incorporated within the United States of
America which shall expressly assume the due and punctual payment of the
principal of, and premium, if any, and interest, if any, on all of the
Securities of each series and the due and punctual performance of all of the
covenants and conditions of the Indenture and the Securities of each series, and
unless immediately after any such transaction, no default shall exist in the
performance of any of the covenants and conditions of the Indenture or the
Securities of any series, and no liens shall exist upon assets of the Company or
the New Company other than as permitted by Sec. 6.02(5). In case of any such
consolidation, merger, sale or conveyance and upon any such assumption by the
New Company, the New Company shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the party of the
first part and the predecessor corporation shall be relieved of any further
obligation under the Indenture.
<PAGE> 56
46
Other Instruments, etc.:
(7) From time to time, upon the written request of the Trustee (which the
Trustee, subject to Sec. 9.01, shall be under no obligation to make), will
execute, acknowledge and deliver all such further and additional instruments and
take all such further action as may be reasonable or may be required to carry
out the intention of the Indenture, and to provide for the payment of the
Securities of each series, according to the intent and purposes expressed in the
Indenture and in the Securities of such series.
Permit no Vacancy in Office of Trustee:
(8) Whenever necessary to avoid or fill a vacancy in the office of the
Trustee, will appoint a Trustee in the manner provided in Sec. 9.10, so that
there shall be at all times a Trustee with respect to each series of Securities
hereunder.
Agreement with Paying Agent:
(9) If it shall appoint a Paying Agent other than the Trustee with respect
to the Securities of any series, it will cause such Paying Agent to execute and
deliver to the Trustee, an instrument in which such Paying Agent shall agree
with the Trustee subject to the provisions of Sec. 6.02(10),
(a) that it will hold all sums held by it as such Paying Agent for the
payment of the principal of, premium, if any, and interest, if any, on the
Securities of such series (whether such sums have been paid to it by the
Company or by any other obligor on the Securities of such series) in trust
for the benefit of the Holders of the Securities of such series, and the
Coupons, if any, appertaining thereto or the Trustee,
(b) that it will give the Trustee notice of any default by the Company
(or by any other obligor on the Securities of such series) in the making of
any payment of the principal of, premium, if any, or interest, if any, on
the Securities of such series when the same shall be due and payable, and
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
Money for Securities Payments to be Held in Trust:
(10) If it shall act as its own Paying Agent with respect to the Securities
of any series, on or before the due date of the principal of, premium, if any,
or
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47
interest, if any, on the Securities of such series and the Coupons, if any,
appertaining thereto, will set aside, segregate and hold in trust for the
benefit of the Holders of the Securities of such series and the Coupons, if any,
appertaining thereto, or the Trustee, a sum (in the currency or currency unit in
which the Securities of such series are denominated, except as otherwise
specified as contemplated by Sec. 3.01 for the Securities of such series and
except as provided in Sec. 3.11(b), 3.11(e) and 3.11(f) of this Indenture)
sufficient to pay such principal, premium, if any, or interest, if any, so
becoming due and will notify the Trustee of such action, or any failure (by it
or any other obligor on the Securities of such series and the Coupons, if any,
appertaining thereto) to take such action.
Whenever the Company shall have one or more Paying Agents with respect to
the Securities of any series, it will, prior to the due date of the principal
of, premium, if any, or interest, if any, on the Securities of such series and
the Coupons, if any, appertaining thereto, deposit with a designated Paying
Agent a sum (in the currency or currency unit described in the preceding
paragraph) sufficient to pay the principal, premium, if any, or interest, if
any, so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium, if any, or interest, if any, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee at its Corporate Trust Office of its failure so to act, provided that,
anything in Subdivisions (9) and (10) of this Sec. 6.02 to the contrary
notwithstanding, the agreement to hold sums in trust as provided therein is
subject to the provisions of Sec. 12.04.
Financial Statements, etc.:
(11) Will, beginning with the first April 30 which occurs no less than 60
days following the first date of issuance of any series of Securities under this
Indenture,
(a) file with the Trustee within four months after the close of each
fiscal year (which, until the Company shall otherwise notify the Trustee,
shall be deemed to be the twelve months ending December 31 in each year) a
consolidated income statement, a consolidated surplus statement and a
consolidated balance sheet as of the end of such fiscal year, of the
Company and its Subsidiaries, all certified by independent public or
certified accountants selected by the Company (who may be the accountants
who regularly audit the books of the Company and its Subsidiaries),
accompanied by any report or comments by said accountants made in
connection with the certification of such statements;
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(b) file with the Trustee concurrently with the filing of the
foregoing financial statements, a certificate of the principal executive
officer, the principal financial officer or the principal accounting
officer of the Company, stating whether or not, to the knowledge of the
signer, the Company has complied with all conditions and covenants on its
part contained in this Indenture, and if the signer has obtained knowledge
of any default by the Company in the performance, observance or fulfillment
of any such condition or covenant, specifying each such default and the
nature thereof (provided that, for purposes of this subsection (b),
compliance shall be determined without regard to any grace period or
requirement of notice provided pursuant to the terms of this Indenture);
and
(c) file with the Trustee concurrently with the filing of such
financial statements, a written statement of the firm of public or
certified accountants who shall have certified such financial statements,
addressed to the Company, to the effect that in making the audit necessary
to said certification, they have obtained no knowledge of any default which
is continuing at the date of such written statement under the Securities or
under Sec. 6.02(3), (4), (5), (6) or (12) of this Indenture, except as
specifically indicated, provided, however, that such accountants shall not
be liable to anyone by reason of any failure to obtain knowledge of any
such default.
All of the financial statements required by paragraph (11) of this
Sec. 6.02 to be filed with the Trustee shall be open to inspection during
business hours by Holders of Securities.
Transactions with Controlling Persons:
(12) Will not itself and will not permit any Subsidiary (i) directly or
indirectly to make any loan or otherwise extend credit to any Controlling Person
or Controlling Person Subsidiary, or (ii) directly or indirectly to enter into
any other transaction with a Controlling Person or Controlling Person
Subsidiary, in either case on terms and conditions which the Company shall
determine to be less favorable to the Company or such Subsidiary than the terms
and conditions which would apply in a similar transaction with a Person other
than a Controlling Person or Controlling Person Subsidiary, provided that this
covenant shall not apply to transactions involving the Company and its
Subsidiaries exclusively.
Sec. 6.03. Waiver. The observance of any provision of this Article Six
(except Sec. 6.01, Sec. 6.02(8), (9) and (10) and Sec. 6.03) may be waived with
respect to any series of the Securities (either generally or in a particular
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49
instance and either before or after the time for such observance) if the Company
shall have obtained the consent of the holders of at least sixty-six and
two-thirds percent (66 2/3%) in aggregate principal amount of all Outstanding
Securities of such series.
ARTICLE SEVEN.
HOLDERS' LISTS AND REPORTS BY THE COMPANY AND
THE TRUSTEE.
Sec. 7.01. Semi-Annual Lists of Holders. The Company covenants and agrees
that it will furnish or cause to be furnished to the Trustee for the Securities
of each series (i) semi-annually, not more than fifteen days after each record
date for the payment of interest, if any, in respect of Securities of such
series and on dates in each year to be determined pursuant to Sec. 3.01 if the
Securities of such series do not bear interest and (ii) at such other times as
the Trustee may request in writing, within thirty days after receipt by the
Company of any such request, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of the Registered Securities
of such series, as of the respective record dates therefor (and on dates to be
determined pursuant to Sec. 3.01 if the Securities of such series do not bear
interest); provided, however, that no such list need be furnished so long as the
Trustee is the Securities Registrar for such series. Any such list may be dated
as of a date not more than fifteen days prior to the time such information is
furnished or caused to be furnished and need not include information received
after such date. The Company shall also be required to furnish such information
which is known to it concerning the Holders of Coupons and Unregistered
Securities; provided however, that the Company shall have no obligation to
investigate any matter relating to any Holder of an Unregistered Security or any
Holder of a Coupon.
Sec. 7.02. Preservation of Information, etc. (a) The Trustee shall
preserve, in as current a form as is reasonably practicable, all information as
to the names and addresses of the Holders of Securities of each series (1)
contained in the most recent list furnished to it as provided in Sec. 7.01, (2)
received by it in the capacity of Paying Agent for such series (if so acting)
hereunder and of Securities Registrar for such series, and (3) filed with it
within two preceding years pursuant to the provisions of paragraph (2) of
Subsection (c) of Sec. 7.04.
The Trustee for any series of the Securities may (1) destroy any list
furnished to it as provided in Sec. 7.01 upon receipt of a new list so
furnished, (2) destroy any information received by it as Paying Agent for such
series (if so acting) hereunder upon delivering to itself as Trustee a list
containing the
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50
names and addresses of the Holders of Securities of such series obtained from
such information since the delivery of the next previous list, if any, (3)
destroy any list delivered to itself as Trustee which was compiled from
information received by it as Paying Agent (if so acting) hereunder upon the
receipt of a new list so delivered, and (4) destroy any information filed with
it by Holders of Securities of such series for the purpose of receiving reports
pursuant to the provisions of paragraph (2) of subsection (c) of Sec. 7.04, but
not until two years after such information has been filed with it.
(b) In case three or more Holders of Securities of any series (hereinafter
referred to as "applicants") apply in writing to the Trustee for such series,
and furnish to the Trustee reasonable proof that each such applicant has owned a
Security of such series for a period of at least six months preceding the date
of such application, and such application states that the applicants desire to
communicate with other Holders of Securities of such series or with Holders of
Securities of all series for which the Trustee is serving as Trustee with
respect to their rights under this Indenture or under such Securities, and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either
(1) afford to such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a)
of this Sec. 7.02, or
(2) inform such applicants as to the approximate number of Holders of
Securities of such series or of all series, as the case may be, whose names
and addresses appear in the information preserved at the time by the
Trustee, in accordance with the provisions of subsection (a) of this
Sec. 7.02, and as to the approximate cost of mailing to such Holders the
form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of a Security of such series or all Holders of Securities of
series for which it is Trustee, as the case may be, whose names and addresses
appear in the information preserved at the time by the Trustee in accordance
with the provisions of subsection (a) of this Sec. 7.02 a copy of the form of
proxy or other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Securities and Exchange Commission, together
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with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders of Securities of such series or of the Holders of
Securities of all series for which it is Trustee, as the case may be, or would
be in violation of applicable law. Such written statement shall specify the
basis of such opinion. If said Commission, after opportunity for a hearing upon
the objections specified in the written statements so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, said Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all Holders of Securities of such series or to all
Holders of Securities of all series for which it is Trustee, as the case may be,
with reasonable promptness after the entry of such order and the renewal of such
tender; otherwise the Trustee shall be relieved of any obligation or duty to
such applicants respecting their application.
(c) Each and every Holder of the Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any Paying Agent shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
of Securities in accordance with the provisions of subsection (b) of this
Sec. 7.02, 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 said subsection (b).
Sec. 7.03. Periodic Reports by Company. (a) The Company covenants and
agrees to file with the Trustee for each series of the Securities, within
fifteen days after the Company is required to file the same with the Securities
and Exchange Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as said Commission may from time to time by rules and regulations prescribe)
which the Company may be required to file with said Commission pursuant to
Section 13 or Section 15 (d) of the Securities Exchange Act of 1934, as amended;
or, if the Company is not required to file information, documents or reports
pursuant to either of such sections, then to file with the Trustee and said
Commission, in accordance with rules and regulations prescribed from time to
time by said Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended, in respect of a security listed and
registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations.
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(b) The Company covenants and agrees to file with the Trustee for each
series of the Securities and the Securities and Exchange Commission, in
accordance with the rules and regulations prescribed from time to time by said
Commission, such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants provided for in this
Indenture as may be required from time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit to all Holders of
Securities within thirty days after the filing thereof with the Trustee for each
series of the Securities, in the manner and to the extent provided in subsection
(c) of Sec. 7.04 with respect to reports pursuant to subsection (a) of said
Sec. 7.04, such summaries of any information, documents and reports required to
be filed by the Company pursuant to subsections (a) and (b) of this Sec. 7.03 as
may be required by rules and regulations prescribed from time to time by the
Securities and Exchange Commission.
Sec. 7.04. Trustee's Reports to Holders. (a) Within 60 days after the first
occurrence of the date provided therefor elsewhere in this Indenture, and within
60 days after such date in every year thereafter, so long as any Securities are
outstanding hereunder, the Trustee for each series of the Securities shall
transmit to all Holders of Securities of such series as hereinafter in this
Sec. 7.04 provided a brief report dated as of such date with respect to any of
the following events which may have occurred during the twelve months preceding
the date of such report (but if no such event has occurred within such period,
no report need be transmitted):
(1) any change to its eligibility under Sec. 9.09, and its
qualifications under Sec. 9.08, or in lieu thereof, if to the best of its
knowledge, it has continued to be eligible and qualified under such
Sections, a written statement to such effect;
(2) the creation of or any material change to a relationship specified
in Section 310(b)(1) through Section 310(b)(10) of the Trust Indenture Act;
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the Securities of any series, on any property or funds
held or collected by it as Trustee if such advances so remaining unpaid
aggregate more that one-half of one per cent of the principal
<PAGE> 63
53
amount of the Securities of any series outstanding on the date of such
report;
(4) any change to the amount, interest rate, and maturity date of all
other indebtedness owing by the Company (or by any other obligor on the
Securities of any series) to the Trustee in its individual capacity, on the
date of such report, with a brief description of any property held as
collateral security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in paragraphs (2), (3), (4) or
(6) of Subsection (b) of Sec. 9.13;
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities of any series for which it is
Trustee which the Trustee has not previously reported; and
(7) any action taken by the Trustee in the performance of its duties
under this Indenture which it has not previously reported and which in its
opinion materially affects the Securities of any series, except action in
respect of a default, notice of which has been or is to be withheld by it
in accordance with the provisions of Sec. 9.02.
(b) The Trustee for each series of the Securities shall transmit to all
Holders of Securities of such series, as hereinafter provided, a brief report
with respect to the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made by
the Trustee as such since the date of the last report transmitted pursuant to
the provisions of Subsection (a) of this Sec. 7.04 (or if no such report has yet
been so transmitted, since the date of execution of this Indenture), for the
reimbursement of which it claims or may claim a lien or charge prior to that of
the Securities of any series on property or funds held or collected by it as
Trustee, and which it has not previously reported pursuant to this subsection if
such advances remaining unpaid at any time aggregate more than ten per cent
(10%) of the principal amount of Securities of such series Outstanding at such
time, such report to be transmitted within ninety days after such time.
(c) Reports pursuant to this Sec. 7.04 shall be transmitted by mail:
(1) to all registered Holders of Registered Securities, as the names
and addresses of such Holders appear in the applicable Securities Register;
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54
(2) to such Holders of Securities of any series as have, within two
years preceding such transmission, filed their names and addresses with the
Trustee for such series for that purpose; and
(3) except in the cases of reports pursuant to subsection (b) of this
Sec. 7.04, to each Holder of a Security of any series whose name and
address is preserved at the time by the Trustee for such series, as
provided in subsection (a) of Sec. 7.02.
(d) A copy of each such report shall, at the time of such transmission to
Holders of Securities of any series, be filed by the Trustee for such series
with each stock exchange upon which such Securities are listed and also with the
Securities and Exchange Commission. The Company agrees to notify the Trustee for
each series when and as any Securities become listed on any stock exchange.
Sec. 7.05 Delivery of Reports by the Trustee. The date referred to in
Sec. 7.04 hereof, 60 days after which the Trustee is required to transmit the
reports referred to in such Sec. 7.04, shall be the first January 1 which occurs
not less than 60 days following the first date of issuance of the Securities of
any series under this Indenture.
ARTICLE EIGHT.
REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT.
Sec. 8.01. Events of Default; Effect Thereof. "Event of Default" whenever
used herein with respect to Securities of any series means any one of the
following events and such other events as may be established with respect to the
Securities of such series as contemplated by Sec. 3.01 hereof (whatever the
reason for such Event of Default and whether it shall be occasioned by the
provisions of Article Fifteen or be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
continued for the period of time, if any, and after the giving of notice, if
any, designated herein or therein, as the case may be, unless it is either
inapplicable to a particular series or it is specifically deleted or modified in
the applicable resolution of the Board of Directors or in the supplemental
indenture under which such series of Securities is issued, as the case may be,
as contemplated by Sec. 3.01:
(1) default shall occur in the punctual payment of the principal of
and premium, if any, of any Security of such series when and as the same
shall become due and payable, at its Maturity, or default in the making or
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55
satisfaction of any sinking fund payment or analogous obligation as and
when the same shall become due and payable by the terms of the Securities
of such series, or
(2) default shall occur in the payment of any installment of interest
on any Security of such series as and when the same shall become due and
payable, and such default shall continue for thirty days, or
(3) default shall occur in the due observance or performance of any
other covenant, condition or agreement on the part of the Company in
respect of the Securities of such series contained in this Indenture (other
than a covenant or agreement in respect of the Securities of such series a
default in whose observance is elsewhere in this Section specifically dealt
with), and any such default shall continue for sixty days after written
notice thereof, specifying such default and requiring the same to be
remedied, shall have been given to the Company by the Trustee for such
series, which may, in its discretion, give such notice and shall do so at
the request pursuant to Sec. 10.01 of the Holders of at least a majority in
principal amount of the Securities of such series at the time Outstanding,
or
(4) by the order of a court of competent jurisdiction a receiver or
liquidator or trustee of the Company or of any of the property of the
Company shall be appointed and such receiver or liquidator or trustee shall
not have been discharged within a period of sixty days, or, by decree of
such a court, the Company shall be adjudicated bankrupt or insolvent or any
substantial part of the property of the Company shall have been sequestered
and such decree shall have continued undischarged and unstayed for a period
of sixty days after the entry thereof, or a petition to declare bankrupt or
to reorganize the Company pursuant to any of the provisions of the Federal
Bankruptcy Code, as it now exists, or as it may hereafter be amended, or
pursuant to any other similar statute applicable to the Company, as now or
hereafter in effect, shall be filed against the Company (and, in the case
of any such petition filed pursuant to any provision of a statute which
requires the approval of such petition by a court, shall be approved by
such a court) and shall not be dismissed within sixty days after such
filing, or
(5) the Company shall file a petition in voluntary bankruptcy under
any provision of any bankruptcy law or shall consent to the filing of any
bankruptcy or reorganization petition against it under any similar law, or
(without limitation of the generality of the foregoing) the Company shall
file a petition or answer or consent seeking relief or assisting in seeking
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56
relief for the Company in a proceeding under any of the provisions of the
Federal Bankruptcy Code, as it now exists or as it may hereafter be
amended, or pursuant to any other similar statute applicable to the
Company, as now or hereafter in effect, or an answer admitting the material
allegations of a petition filed against it in such a proceeding, or the
Company or its directors or stockholders shall take action looking to the
dissolution or liquidation of the Company (except in connection with a
consolidation, merger, sale or conveyance pursuant to Article Six hereof),
or the Company shall make an assignment for the benefit of its creditors,
or shall admit in writing its inability to pay its debts generally as they
become due, or shall consent to the appointment of a receiver or receivers,
or trustee or trustees, or liquidator or liquidators, of it or of all or
any part of its property, or
(6) a default shall occur in the payment of any installment of
interest, when the same shall become due and payable, on any other series
of Securities issued or hereafter issued pursuant to this Indenture or on
any other bond, debenture, note or other evidence of indebtedness issued,
assumed or guaranteed by the Company and such default shall continue for a
period of thirty days, or default shall be made in the payment of the
principal of any such other series of Securities or any such other bond,
debenture, note or evidence of indebtedness when the same shall become due
and payable whether at Maturity, by declaration, by call for prepayment, by
call for redemption, or otherwise, and the time for payment of such
interest or principal shall not have been effectively extended, or
(7) any other Event of Default provided in the applicable resolution
of the Board of Directors or in the supplemental indenture under which such
series of Securities is issued, as the case may be, as contemplated by
Sec. 3.01.
If an Event of Default with respect to Securities of any series at the time
outstanding shall have occurred and be continuing, then and in each and every
such case, unless the principal of all the Securities of such series shall have
already become due and payable, either the Trustee for such series or the
Holders of not less than 25% in aggregate principal amount of the Securities of
such series then Outstanding hereunder, by notice in writing to the Company (and
to the Trustee if given by the Holders), may declare the principal amount (or,
if the Securities of such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that series)
of all the Securities of such series to be due and payable immediately, and upon
any such declaration the same shall become and shall be immediately due and
payable, anything in this Indenture or in the Securities of such series
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57
contained to the contrary notwithstanding. This provision, however, is subject
to the condition that if, at any time after the principal amount (or if the
Securities of such series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of such series) of the
Securities of any series shall have been so declared due and payable, and before
any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee for such series a sum sufficient to pay in the currency
or currency unit in which the Securities of such series are payable (except as
otherwise specified as contemplated by Sec.3.01 for the Securities of such
series and except as provided in Sec.Sec.3.11(b), 3.11(e) and 3.11(f) of this
Indenture), all matured installments of interest, if any, upon all the
Securities of such series and (in the currency or currency unit described above)
the principal of (and premium, if any, on) any and all Securities of such series
which shall have become due otherwise than by acceleration (with interest on
such principal and premium, if any, and, so far as payment of the same is
enforceable under applicable law, on overdue installments of interest, at the
Overdue Rate applicable to such series to the date of such payment or deposit)
and in Dollars all amounts payable to the Trustee pursuant to the provisions of
Sec. 9.07, and any and all defaults under this Indenture with respect to such
series of Securities, other than the nonpayment of principal of and accrued
interest on Securities of such series which shall have become due by
acceleration, shall have been remedied or cured or waived or provision shall
have been made therefor to the satisfaction of the Trustee -- then and in every
such case the Holders of a majority in aggregate principal amount of the
Securities of such series then Outstanding, by written notice to the Company and
to the Trustee, may waive all defaults and its consequences; but no such waiver
or rescission and annulment shall extend to or shall affect any subsequent
default, or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Company and
the Trustee shall be restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the Company and the Trustee
shall continue as though no such proceedings had been taken.
Sec. 8.02. Collection of Indebtedness by Trustee. The Company covenants
that (a) in case default shall occur in payment of any installment of interest
on any Security of any series as and when the same shall become due and payable,
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58
and such default shall have continued for a period of thirty days, or (b) in
case default shall occur in the payment of the principal of or premium, if any,
on any Security of any series when the same shall have become payable, upon
Maturity of the Securities of that series or (c) in case of default in the
making or satisfaction of any sinking fund payment or analogous obligation when
the same becomes due by the terms of the Securities of any series -- then, upon
demand of the Trustee for such series, the Company will pay to the Trustee, for
the benefit of the Holder of any such Security (or Holders of any such series of
Securities in the case of clause (c) above) and the Holders of any Coupons
appertaining thereto the whole amount that then shall have become due and
payable on any such Security (or Securities of any such series in the case of
clause (c) above) and matured Coupons, if any, appertaining thereto for the
principal, premium, if any, and interest, if any, with interest upon the overdue
principal and premium, if any, and, so far as payment of the same is enforceable
under applicable law, on overdue installments of interest, at the Overdue Rate
applicable to any such Security (or Securities of any such series in the case of
clause (c)); and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, and any further
amounts payable to the Trustee pursuant to the provisions of Sec. 9.07.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor on such
Security (or Securities of any such series in the case of clause (c)) and
Coupons and collect in the manner provided by law out of the property of the
Company or any other obligor on such Security (or Securities of any such series
in the case of clause (c)) and Coupons wherever situated the moneys adjudged or
decreed to be payable.
The Trustee for any series of the Securities shall be entitled and
empowered, either in its own name as trustee of an express trust, or as
attorney-in-fact for the Holders of any of the Securities of such series and for
the Holders of any Coupons appertaining thereto, or in both such capacities, to
file such proof of debt, amendment of proof of debt, claim, petition or other
document as may be necessary or advisable in order to have the claims of the
Trustee and of the Holders of Securities of such series and the Holders of any
Coupons appertaining thereto allowed in any equity receivership, insolvency,
bankruptcy, liquidation, readjustment, reorganization or other similar
proceedings, or any judicial proceedings, relative to the Company or any other
obligor on the Securities of
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59
such series and any Coupons appertaining thereto or its creditors or its
property. The Trustee for each series of the Securities is hereby irrevocably
appointed (and the successive respective Holders of the Securities of such
series and the Holders of any Coupons appertaining thereto, by taking and
holding the same, shall be conclusively deemed to have so appointed the Trustee)
the true and lawful attorney-in-fact of the respective Holders of the Securities
of such series and the Holders of any Coupons appertaining thereto, with
authority to make or file in the respective names of the Holders of the
Securities of such series and the Holders of any Coupons appertaining thereto or
on behalf of all the Holders of Securities of all series and the Holders of any
Coupons appertaining thereto for which it is Trustee, any proof of debt,
amendment of proof of debt, claim, petition or other document in any such
proceedings and to receive payment of any sums becoming distributable on account
thereof, and to execute any other papers and documents and do and perform any
and all acts and things for and on behalf of such Holders of the Securities of
such series and the Holders of any Coupons appertaining thereto, as may be
necessary or advisable in the opinion of the Trustee in order to have the
respective claims of the Holders of the Securities of such series and the
Holders of any Coupons appertaining thereto against the Company or any other
obligor on the Securities of such series and any Coupons appertaining thereto
and/or its property allowed in any such proceedings, and to receive payment of
or on account of such claims; provided, however, that nothing herein contained
shall be deemed to authorize or empower the Trustee to consent to or accept or
adopt, on behalf of any Holder of Securities of any series or any Holder of any
Coupons appertaining thereto, any plan of reorganization or readjustment of the
Company or any other obligor on the Securities of any series and any Coupons
appertaining thereto, or, by other action of any character in any such
proceeding, to waive or change in any way any right of any Holder of any
Security of any series or any Holder of any Coupons appertaining thereto even
though it may otherwise be entitled so to do under any present or future law,
all such power or authorization being hereby expressly denied.
All rights of action and of asserting claims under this Indenture, or under
the Securities of any series or any Coupons appertaining thereto, may be
enforced by the Trustee for such series without the possession of any of the
Securities of such series or any Coupons appertaining thereto, or the production
thereof on any trial or other proceeding relative thereto, and any such suit or
proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall be for the
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ratable benefit of the Holders of the Securities or Coupons in respect of which
such action was taken.
Sec. 8.03. Application of Moneys Collected by Trustee. Any moneys collected
by the Trustee for the Securities of any series under or pursuant to, or as
authorized or permitted by, this Article Eight, together with any other sums
held by the Trustee (as such) hereunder (other than sums held in trust for the
benefit of the Holders of particular Securities or Coupons), shall be applied as
follows at the date fixed by the Trustee for distribution of such moneys, upon
presentation (except in respect of Subdivision FIRST below) of the several
Securities and any Coupons appertaining thereto with respect to which such
moneys were collected, and stamping thereon of an appropriate legend respecting
the payment, if only partially paid, or upon the surrender thereof, if fully
paid:
FIRST: To the payment of all amounts due the Trustee pursuant to the
provisions of Sec. 9.07;
SECOND: In case the principal of such Outstanding Securities shall not
have become due and shall not be unpaid, to the payment of the interest, if
any, on the Securities of such series in the order of maturity of the
installments of such interest, with interest (to the extent that such
interest has been collected by the Trustee), so far as it may be
enforceable under applicable law, upon the overdue installments at the
Overdue Rate applicable to such series, such payments to be made, subject
to the provisions of Sec. 8.08, ratably to the persons entitled thereto
without discrimination or preference;
THIRD: In case the principal of such Outstanding Securities shall have
become due by declaration or otherwise, to the payment of the whole amount
then owing and unpaid upon the Securities of such series for principal,
premium, if any, and interest, if any, with interest upon any overdue
principal and premium, if any, and also (to the extent that such interest
has been collected by the Trustee), so far as payment of the same is
enforceable under applicable law, upon any overdue installments of
interest, if any, at the Overdue Rate applicable to such series; and, in
case such moneys shall be insufficient to pay in full the whole amount so
due and unpaid upon the Securities of such series, then, subject to the
provisions of Sec. 8.08, to the payment of such principal, premium, if any,
and interest, if any, without preference or priority of principal, and
premium, if any, over interest, or of interest, if any, over principal, and
premium, if any, or of any installment of interest, if any, over any other
installment of interest, if any, or of any Security of such series over any
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other Security of such series, or of any Coupon appertaining thereto over
any other Coupon appertaining thereto, ratably to the aggregate of such
principal, premium, if any, and interest, if any;
FOURTH: To the payment of all other amounts payable by the Company
under the terms of this Indenture; and
FIFTH: To the payment of the surplus, if any, to the Company, its
successors or assigns or to whosoever may be lawfully entitled to receive
the same, or as a court of competent jurisdiction may direct.
Sec. 8.04. Limitation on Suits on Indenture; No Limitation on Suits on
Securities. No Holder of any Security of any series or Holder of any Coupons
appertaining thereto shall have any right by virtue of or by availing of any
provision of this Indenture to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee (or other similar official), or for any
other remedy hereunder, unless an Event of Default shall have occurred and be
continuing and such Holder previously shall have given to the Trustee for such
series written notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of not less than 25% in aggregate
principal amount of the Securities of such series then Outstanding shall have
made written request upon the Trustee for such series to institute such action,
suit or proceeding in its own name as Trustee hereunder and shall have offered
to the Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and the Trustee for
sixty days after its receipt of such notice, request and offer of indemnity,
shall have neglected or refused to institute any such action, suit or
proceeding; it being understood and intended, and being expressly covenanted by
the taker and Holder of every Security and by the taker and Holder of any Coupon
appertaining thereto with every other taker and Holder of any Security and of
any Coupon appertaining thereto and the Trustee for the Securities of each
series, that no one or more Holders of Securities of any series or of any
Coupons appertaining thereto shall have any right in any manner whatever by
virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holder of Securities of such series or of any
Coupons appertaining thereto, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of such series or of any Coupons
appertaining thereto. For the protection and enforcement of the provisions of
this Sec. 8.04, each and every Holder of Securities of any series or of any
Coupons
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appertaining thereto and the Trustee for such series shall be entitled to such
relief as can be given either at law or in equity.
Nothing contained in this Indenture, in the Securities of any series, or in
any Coupon appertaining thereto, shall affect or impair the obligation of the
Company, which is unconditional and absolute, to pay the principal of, and
premium, if any, and interest, if any, on the Securities of such series at the
respective places, at the respective times, at the respective rates, in the
respective amounts and in the coin, currency or currency unit therein and herein
prescribed or affect or impair the right of action, which is also absolute and
unconditional, of any Holder of any Security or Coupon, if any, to institute
suit to enforce such payment at the respective due dates expressed in such
Security or Coupon, if any, or upon redemption, by declaration, repayment or
otherwise as herein provided without reference to, or the consent of, the
Trustee or the Holder of any other Security or Coupon, if any, unless such
Holder consents thereto.
Sec. 8.05. Remedies Cumulative; Delay not to Impair Rights. All powers and
remedies given by this Article Eight to the Trustee for any series of the
Securities or to the Holders of such Securities or any Coupons appertaining
thereto shall, to the extent permitted, by law, be deemed cumulative and not
exclusive of any thereof or of any other powers and remedies available to the
Trustee or the Holders of such Securities or any Coupons appertaining thereto by
judicial proceedings or otherwise to enforce the performance or observance of
the covenants and agreements contained in this Indenture, and no delay or
omission of the Trustee or of any Holder of any of the Securities of such series
or any Coupons appertaining thereto to exercise any right or power accruing upon
any default occurring and continuing as aforesaid shall impair any such right or
power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Sec. 8.04, every power
and remedy given by this Article Eight or by law to the Trustee for any series
of the Securities or to Holders of the Securities of such series or any Coupons
appertaining thereto may be exercised from time to time, and as often as shall
be deemed expedient, by the Trustee for such series or by Holders of such
Securities or any Coupons appertaining thereto. No waiver of any default
hereunder shall extend to or affect any other or subsequent default or impair
any rights or remedies consequent thereon.
Sec. 8.06. Directions by Holders of Securities. The Holders of a majority
in aggregate principal amount of the Securities of any series at the time
Outstanding, shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee for such
series, or exercising any trust or power conferred on the Trustee.
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Sec. 8.07. Undertakings for Costs. All parties to this Indenture agree and
each Holder of any Security and each Holder of any Coupon by his acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or any suit against the Trustee for the Securities of any series for
any action taken or omitted by it as Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Sec. 8.07 shall not apply to any suit instituted by
the Trustee for the Securities of any series, to any suit instituted by any
Holder of Securities of any series, or group of such Holders, holding in the
aggregate more than 10% in aggregate principal amount of the Outstanding
Securities of such series, or any suit instituted by any Holder of Securities or
Coupons for the enforcement of the payment of the principal of, premium, if any,
or interest, if any, on any Security or Coupon on or after the due date
expressed in such Security or Coupon, on or after the date fixed for redemption
or after such Security or Coupons shall have become due by declaration.
Sec. 8.08. Waiver of Stay or Extension Laws. The Company covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee for the
Securities of any series, but will suffer and permit the execution of every such
power as though no such law had been enacted.
Sec. 8.09. Judgment Currency. If for the purpose of obtaining a judgment in
any court with respect to any obligation of the Company hereunder or under any
Security or Coupon, it shall become necessary to convert into any other currency
or currency unit any amount in the currency or currency unit due hereunder or
under such Security or Coupon, then such conversion shall be made at the
Conversion Rate as in effect on the date the Company shall make payment to any
Person in satisfaction of such judgment. If pursuant to any such judgment,
conversion shall be made on a date other than the date payment is made and there
shall occur a change between such Conversion Rate and the Conversion Rate as in
effect on the date of payment, the Company agrees to pay such additional amounts
(if any) as may be necessary
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to ensure that the amount paid is the amount in such other currency or currency
unit which, when converted at the Conversion Rate as in effect on the date of
payment or distribution, is the amount then due hereunder or under such Security
or Coupon. Any amount due from the Company under this Sec. 8.09 shall be due as
a separate debt and is not to be affected by or merged into any judgment being
obtained for any other sums due hereunder or in respect of any Security or
Coupon. In no event, however, shall the Company be required to pay more in the
currency or currency unit due hereunder or under such Security or Coupon at the
Conversion Rate as in effect when payment is made than the amount of currency or
currency unit stated to be due hereunder or under such Security or Coupon so
that in any event the Company's obligations hereunder or under such Security or
Coupon will be effectively maintained as obligations in such currency or
currency unit.
For purposes of this Sec. 8.09, "Conversion Rate" shall mean the spot rate
at which in accordance with normal banking procedures the currency or currency
unit into which an amount due hereunder or under any Security or Coupon is to be
converted could be purchased with the currency or currency unit due hereunder or
under any Security or Coupon from major banks located in New York, London or any
other principal market for such purchased currency or currency unit.
ARTICLE NINE.
CONCERNING THE TRUSTEE.
Sec. 9.01. 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 hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
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(b) In case an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Sec. 9.01;
(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 for the Securities of any series 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 Securities of such
series pursuant to Sec. 8.06 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 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.
Sec. 9.02. Notice of Defaults. Within 90 days after the occurrence of a
default hereunder with respect to the Securities of any series, the Trustee for
such series shall transmit by mail to all Holders of Securities of such series,
in the manner and to the extent provided in Sec. 7.04(c) and give to all Holders
of Securities of such series and of Coupons, if any, appertaining thereto as
otherwise provided in Sec. 14.03, notice of such default hereunder with respect
to such series known to the Trustee, unless such default shall have been cured
or waived; provided, however, that, except in the case of a default in the
payment
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of the principal of, premium, if any, or interest, if any, on any Security of
such series or in the payment of any sinking fund installment or analogous
obligation with respect to such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of Securities of such series and of Coupons, if any,
appertaining thereto; and provided, further, that in the case of any default of
the character specified in Sec. 8.01(3) no such notice to Holders shall be given
until at least 30 days after the occurrence thereof. For the purpose of this
Sec. 9.02, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default.
Sec. 9.03. Certain Rights of Trustee. Except as otherwise provided in
Sec. 9.01:
(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, coupon 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, direction, order or demand of the Company mentioned herein
shall be sufficiently evidenced by an Officers' Certificate and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee for the Securities of any series shall be under no
obligation to exercise any of the rights or powers vested in it by this
Indenture at the request, order or direction of any of the Holders of Securities
of such series pursuant to this Indenture, unless such Holders of Securities
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;
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(f) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note or other paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) the Trustee shall not be liable for any action taken by it in good
faith and believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture.
Sec. 9.04. Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Securities, except the 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 or Coupons. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Sec. 9.05. May Hold Securities. The Trustee, any Paying Agent, Securities
Registrar, Authenticating Agent or any other agent of the Company or the
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons and, subject to Sec. 9.08 and Sec. 9.13, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Securities Registrar, Authenticating Agent or such
other agent.
Sec. 9.06. Money Held in Trust. Money in any currency or currency unit held
by the Trustee in trust hereunder need not be segregated from other funds except
to the extent required by law. The Trustee shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed with
the Company.
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Sec. 9.07. Compensation and Reimbursement. The Company agrees
(1) to pay to the Trustee for the Securities of each series from time
to time reasonable compensation in Dollars 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 in Dollars for the Securities of each series 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 in Dollars the Trustee for the Securities of each
series for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this trust, 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.
All such payments and reimbursements shall be made with interest at the
rate of 12% per annum.
As security for the performance of the obligations of the Company under
this Sec. 9.07 the Trustee for the Securities of any series shall have a lien
prior to the Securities of all series 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 Securities of any series.
The obligations of the Company under this Sec. 9.07 to compensate and
indemnify the Trustee and to pay and reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness under the
Indenture and shall survive the satisfaction and discharge of this Indenture.
Sec. 9.08. Disqualification; Conflicting Interests. The Trustee for the
Securities of any series issued hereunder shall be subject to the provisions of
Section 310(b) of the Trust Indenture Act during the period of time provided for
therein. In determining whether the Trustee has a conflicting interest as
defined in Section 310(b) of the Trust Indenture Act with respect to the
Securities of any series, there shall be excluded this Indenture with respect to
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Securities of any particular series of Securities other than that series.
Nothing herein shall prevent the Trustee from filing with the Commission the
application referred to in the penultimate paragraph of Section 310(b) of the
Trust Indenture Act.
Sec. 9.09. Corporate Trustee Required; Eligibility. There shall at all
times be a Trustee hereunder for the Securities of each series, which shall be
at all times either
(i) a corporation organized and doing business under the laws of
the United States of America or of any State or territory or the
District of Columbia, authorized under such laws to exercise corporate
trust powers and subject to supervision or examination by Federal,
State, territory or District of Columbia authority, or
(ii) a corporation or other Person organized and doing business
under the laws of a foreign government that is permitted to act as
Trustee pursuant to a rule, regulation or order of the Commission,
authorized under such laws to exercise corporate trust powers, and
subject to supervision or examination by authority of such foreign
government or a political subdivision thereof substantially equivalent
to supervision or examination applicable to United States
institutional trustees, in either case having a combined capital and
surplus of at least $10,000,000. If such corporation publishes reports
of condition at least annually, pursuant to law or to requirements of
the aforesaid supervising or examining authority, then for the
purposes of this Sec. 9.09, the combined capital and surplus of such
corporation 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 for the Securities of any series shall cease to
be eligible in accordance with the provisions of this Sec. 9.09, it
shall resign immediately in the manner and with the effect hereinafter
specified in this Article Nine. Neither the Company nor any Person
directly or indirectly controlling, controlled by, or under common
control with the Company shall serve as Trustee for the Securities of
any series issued hereunder.
Sec. 9.10. Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee for the Securities of any series and no
appointment of a successor Trustee for such series pursuant to this Article
shall become effective until the acceptance of appointment by the successor
Trustee under Sec. 9.11.
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(b) The Trustee, or any trustee or trustees hereafter appointed, for the
Securities of any series may resign at any time with respect to one or more or
all such series of Securities by giving written notice thereof to the Company.
If an instrument of acceptance by a successor Trustee for Securities of any
series shall not have been delivered to the Trustee for such series within
thirty 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 for such series.
(c) The Holders of a majority in aggregate principal amount of the
Securities of one or more series (each voting as a class) or all series at the
time Outstanding for which the Trustee is serving as Trustee may at any time
remove the Trustee with respect to any or all such series, as the case may be,
and appoint with respect to any or all such series, as the case may be, a
successor Trustee by written notice of such action to the Company, the Trustee
for the applicable series and the successor Trustee.
(d) If at any time:
(1) the Trustee for the Securities of any series shall fail to comply
with Section 310(b) of the Trust Indenture Act with respect to such series
after written request therefor by the Company or by any Holder of
Securities who has been a bona fide Holder of a Security or Securities of
such series for at least six months, unless the Trustee's duty to resign is
stayed in accordance with the provisions of Section 310(b) of the Trust
Indenture Act, or
(2) the Trustee for the Securities of any series shall cease to be
eligible under Sec. 9.09 with respect to such series 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 for the Securities of any series shall become
incapable of acting with respect to such series or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall
be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any case, (i) the Company by a resolution of the Board of Directors may
remove the Trustee with respect to such series, or (ii) subject to Sec. 8.07,
any Holder who has been a bona fide Holder of a Security or Securities of such
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series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee for such series.
(e) If the Trustee for the Securities of any series shall resign, be
removed or become incapable of acting, or if a vacancy shall occur in the office
of Trustee for the Securities of any series for any cause, the Company, by a
resolution of the Board of Directors, shall promptly appoint a successor Trustee
for such series. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee for such
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, become the successor Trustee and supersede
the successor Trustee appointed by the Company. If no successor Trustee for the
Securities of such series shall have been so appointed by the Company or the
Holders of the Outstanding Securities of such series and accepted appointment in
the manner hereinafter provided, any Holder of a Security of such series who has
been such 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 for the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee for the Securities of
any series by providing notice of such event to the Holders of Securities of
such series in the manner and to the extent provided in Sec. 14.03. Each notice
shall include the name of the successor Trustee and the address of its Corporate
Trust Office.
Sec. 9.11. Acceptance of Appointment by Successor. Every successor Trustee
appointed hereunder 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 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, subject
nevertheless to its lien, if any, provided for in Sec. 9.07. Upon
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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.
In case of the appointment hereunder of a successor Trustee for the
Securities of one or more (but not all) series, the Company, the predecessor
Trustee and each successor Trustee for the Securities of any applicable series
shall execute and deliver an indenture supplemental hereto which shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor Trustee for the
Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and 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 Trustee's co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such Trustee.
No successor Trustee for a series of Securities shall accept its
appointment unless at the time of such acceptance such successor Trustee shall
with respect to such series be qualified and eligible under this Article.
Upon acceptance of appointment by a successor Trustee as provided in this
Sec. 9.11, the Company shall provide notice of the succession of such Trustee
hereunder to the Holders of Securities of any applicable series and to the
Holders of Coupons, if any, appertaining thereto in the manner and to the extent
provided in Sec. 14.03. If the Company fails to provide such notice within ten
days after the acceptance of appointment by the successor Trustee, the successor
Trustee shall cause such notice to be given at the expense of the Company.
Sec. 9.12. Merger, Conversion, Consolidation or Succession to Business. Any
corporation into which the Trustee for the Securities of any series may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of the Trustee, shall be the successor of the
Trustee for such series hereunder, provided such corporation shall, with respect
to such series, be otherwise qualified and eligible under this Article, to the
extent operative, 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 of one or
more series
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shall have been authenticated, but not delivered, by the Trustee for such series
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; and in case at that time any of such Securities
shall not have been authenticated, any successor to the Trustee may authenticate
such Securities either in the name of the Trustee or such successor to the
Trustee.
Sec. 9.13. Preferential Collection of Claims Against Company. (a) Subject
to Subsection (b) of this Sec. 9.13, if the Trustee for the Securities of any
series shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company or any other obligor on the Securities of such series
within three months prior to a default, as defined in Subsection (c) of this
Sec. 9.13, or subsequent to such a default, then, unless and until such default
shall be cured, the Trustee shall set apart and hold in a special account for
the benefit of the Trustee individually, the Holders of the Securities of such
series, the Holders of the Coupons, if any, appertaining thereto and the holders
of other indenture securities (as defined in Subsection (c) of this Sec. 9.13):
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such three month period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this Sec. 9.13(a), or from the exercise of any right of
set-off which the Trustee could have exercised if a petition in bankruptcy
had been filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claim as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three month
period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee
(A) to retain for its own account (i) payments made on account of any
such claim by any person (other than the Company) who is liable thereon,
and (ii) the proceeds of the bona fide sale of any such claim by the
Trustee to a third person, and (iii) distributions made in cash,
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securities or other property in respect of claims filed against the Company
in bankruptcy or receivership or in cases or proceedings for reorganization
or for any related or similar purpose pursuant to the Federal Bankruptcy
Code or applicable State law;
(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such three month period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such three
month period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received the
Trustee had no reasonable cause to believe that a default as defined in
Subsection (c) of this Sec. 9.13 would occur within three months; or
(D) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property held as security for such claim
provided in paragraph (B) or (C), as the case may be, to the extent of the
fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted after
the beginning of such three month period for property held as security at the
time of such substitution shall, to the extent of the fair value of the property
released, have the same status as the property released, and, to the extent that
any claim referred to in any of such paragraphs is created in renewal of or in
substitution for or for the purpose of repaying or refunding any pre-existing
claim of the Trustee as such creditor, such claim shall have the same status as
such pre-existing claim.
If the Trustee for the Securities of any series shall be required to
account, the funds and property held in such special account and the proceeds
thereof shall be apportioned among the Trustee, the Holders of the Securities of
such series, the Holders of the Coupons, if any, appertaining thereto and the
holders of other indenture securities in such manner that the Trustee, such
Holders and the holders of other indenture securities realize, as a result of
payments from such special account and payments of dividends on claims filed
against the Company in bankruptcy or receivership or in cases or proceedings for
reorganization or for any related or similar purpose pursuant to the Federal
Bankruptcy Code or other applicable Federal or State law, the same percent-
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age of their respective claims, figured before crediting to the claim of the
Trustee anything on account of the receipt by it from the Company of the funds
and property in such special account and before crediting to the respective
claims of the Trustee, the Holders of such Securities, the Holders of the
Coupons, if any, appertaining thereto and the holders of other indenture
securities dividends on claims filed against the Company in bankruptcy or
receivership or in cases or proceedings for reorganization or for any related or
similar purpose pursuant to the Federal Bankruptcy Code or other applicable
Federal or State law, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other than
from such dividends and from the funds and property so held in such special
account. As used in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such claim,
bankruptcy or receivership or cases or proceedings for reorganization or for any
related or similar purpose pursuant to the Federal Bankruptcy Code or other
applicable Federal or State law, whether such distribution is made in cash,
securities, or other property, but shall not include any such distribution with
respect to the secured portion, if any, of such claim. The court in which such
bankruptcy, receivership or cases or proceedings for reorganization or for any
related or similar purpose is pending shall have jurisdiction (i) to apportion
between the Trustee, the Holders of such Securities, the Holders of the Coupons,
if any, appertaining thereto and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property held in
such special account and proceeds thereof, or (ii) in lieu of such apportionment
in whole or in part, to give to the provisions of this paragraph due
consideration in determining the fairness of the distributions to be made to the
Trustee, the Holders of such Securities, the Holders of the Coupons, if any,
appertaining thereto and the holders of other indenture securities with respect
to their respective claims, in which event it shall not be necessary to
liquidate or to appraise the value of any securities or other property held in
such special account or as security for any such claim, or to make a specific
allocation of such distributions as between the secured and unsecured portions
of such claims, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee which has resigned or been removed with respect to any series
of the Securities after the beginning of such three month period shall be
subject to the provisions of this Subsection with respect to such series as
though such resignation or removal had not occurred. If any Trustee has so
resigned or been removed prior to the beginning of such three month period, it
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shall be subject to the provisions with respect to such series of this
Subsection if and only if the following conditions exist:
(i) the receipt of property or reduction of claim, which would have
given rise to the obligation to account, if such Trustee had continued as
Trustee for such series, occurred after the beginning of such three month
period; and
(ii) such receipt of property or reduction of claim occurred within
three months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a) of this
Sec. 9.13 a creditor relationship arising from
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances surrounding
the making thereof is given to the Holders of the applicable series of
Securities and the Holders of the Coupons, if any, appertaining thereto, at
the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in Subsection (c) of this
Sec. 9.13;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
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classification of self-liquidating paper as defined in Subsection (c) of
this Sec. 9.13.
(c) For the purposes of this Section only:
(1) The term "default" means any failure to make payment in full of
the principal of or interest on any of the Securities of the applicable
series or upon the other indenture securities when and as such principal or
interest becomes due and payable.
(2) The term "other indenture securities" means securities upon which
the Company is an obligor (as defined in the Trust Indenture Act of 1939)
outstanding under any other indenture (i) under which the Trustee is also
trustee, (ii) which contains provisions substantially similar to the
provisions of this Section, and (iii) under which a default exists at the
time of the apportionment of the funds and property held in such special
account.
(3) The term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand.
(4) The term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating
or incurring of the draft, bill of exchange, acceptance or obligation.
(5) The term "Company" means any obligor upon the Securities.
Sec. 9.14. Appointment of Authenticating Agent. As long as any Securities
of a series remain Outstanding, if the Corporate Trust Office of the Trustee is
not located in the Borough of Manhattan, The City of New York, or otherwise upon
a Company Request, there shall be an authenticating agent (the "Authenticating
Agent") appointed, for such period as the Company shall elect, by the Trustee
for such series of Securities to act as its agent on its behalf
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and subject to its direction in connection with the authentication and delivery
of each series of Securities for which it is serving as Trustee. Securities of
each such series authenticated by such Authenticating Agent shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by such Trustee. Wherever reference is made in this
Indenture to the authentication and delivery of Securities of any series by the
Trustee for such series or to the Trustee's Certificate of Authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee for such series except by way of original issuance by an
Authenticating Agent for such series and a Certificate of Authentication
executed on behalf of such Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $10,000,000 and subject to supervision or
examination by Federal or State authority. If the Corporate Trust Office of the
Trustee is not located in the Borough of Manhattan, The City of New York, the
Authenticating Agent shall have its principal office and place of business in
the Borough of Manhattan, The City of New York.
Any corporation into which any 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 any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Securities for which it served as Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee for such series or such Authenticating Agent. Any Authenticating
Agent may at any time, and if it shall cease to be eligible shall, resign by
giving written notice of resignation to the applicable Trustee and to the
Company. The Trustee for any series of Securities may at any time terminate the
agency of any Authenticating Agent for such series by giving written notice of
termination to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a termination, or
in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Sec. 9.14 with respect to one or more or
all series of Securities, the Trustee for such series shall upon Company Request
appoint a successor Authenticating Agent, and the Company shall provide notice
of such appointment to all Holders of Securities of such series or any
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Coupons appertaining thereto in the manner and to the extent provided in
Sec. 14.03. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if originally
named as Authenticating Agent herein. The Trustee for the Securities of such
series agrees to pay to the Authenticating Agent for such series from time to
time reasonable compensation for its services, and the Trustee shall be entitled
to be reimbursed for such payment subject to the provisions of Sec. 9.07. The
Authenticating Agent for the Securities of any series shall have no
responsibility or liability for any action taken by it as such at the direction
of the Trustee for such series.
ARTICLE TEN.
CONCERNING THE HOLDERS OF SECURITIES.
Sec. 10.01. Action by Holders. Whenever in this Indenture it is provided
that the Holders of a specified percentage in aggregate principal amount of the
Securities of any series may take any action (including the making of any demand
or request, the giving of any notice, consent or waiver or the taking of any
other action) the fact that at the time of taking any such action the Holders of
such specified percentage have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed by Holders in
person or by agent or proxy appointed in writing, or (b) by the record of
Holders voting in favor thereof at any meeting of such Holders duly called and
held in accordance with the provisions of Article Eleven, or (c) by a
combination of such instrument or instruments and any such record of such a
meeting of Holders. The Company may set a record date for purposes of
determining the identity of Holders entitled to vote or consent to any action by
vote or consent authorized or permitted under this Indenture, which record date
shall be the later of 10 days prior to the first solicitation of such consent or
the date of the most recent list of Holders furnished to the Trustee pursuant to
Sec. 7.01 of this Indenture prior to such solicitation. If the record date is
fixed, those persons who were Holders of Securities at such record date (or
their duly designated proxies), and only those persons, shall be entitled to
take such action by vote or consent or to revoke any vote or consent previously
given, whether or not such persons continue to be Holders after such record
date. No such vote or consent shall be valid or effective for more than 120 days
after such record date.
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Sec. 10.02. Proof of Execution of Instruments by Holders of Securities.
Subject to the provisions of Sec. 9.01, Sec. 9.03 and Sec. 11.05, proof of the
execution of any instrument by a Holder of a Security or of any Coupon or his
agent or proxy and proof of the holding by any person of any of the Securities
shall be sufficient if made in the following manner:
The fact and date of the execution by any such person of any
instrument may be proved by the certificate of any notary public or other
officer authorized to take acknowledgments of deeds, that the person
executing such instrument acknowledged to him the execution thereof, or by
an affidavit of a witness to such execution sworn to before any such notary
or other such officer. Where such execution is by an officer of a
corporation or association or a member of a partnership on behalf of such
corporation, association or partnership, as the case may be, or by any
other person acting in a representative capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority.
The ownership of Registered Securities of any series shall be proved by the
Securities Register for such series or by a certificate of the Securities
Registrar for such series; the ownership of Unregistered Securities of any
series and Coupons shall be proved by proof of possession reasonably
satisfactory to the Trustee.
The record of any Holders' meeting shall be proved in the manner provided
in Sec. 11.06.
Sec. 10.03. Persons Deemed Owners. The Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name any Registered
Security is registered as the owner of such Registered Security for the purpose
of receiving payment of principal of, premium, if any, and (subject to
Sec. 3.08), if such Registered Security is a Fully Registered Security,
interest, if any, on, such Registered 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. The Company, the Trustee, and any agent of the Company
or the Trustee may treat the Holder of any Unregistered Security and the Holder
of any Coupon, whether or not the Security to which such Coupon appertained be
registered, as the absolute owner of such Security or Coupon for the purposes 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, any Paying Agent nor any Security Registrar shall be
affected by notice to the contrary. All such
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payments so made to any Holder for the time being, or upon his order shall be
valid, and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon such Security or Coupon.
Sec. 10.04. Revocation of Consents; Future Holders Bound. At any time prior
to (but not after) the evidencing to the Trustee, as provided in Sec. 10.01, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities specified in this Indenture in connection with such
action, any Holder of a Security the number, letter or other distinguishing
symbol of which is shown by the evidence to be included in the Securities the
Holders of which have consented to such action may, by filing written notice
with the Trustee at its principal office and upon proof of holding as provided
in Sec. 10.02, revoke such action so far as concerns such Security. Except as
aforesaid any such action taken by the Holder of any Security shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of such Security and any Coupon appertaining thereto and of any Securities and
Coupons issued in exchange or substitution therefor, irrespective of whether or
not any notation in regard thereto is made upon such Security or Coupons or such
other Security or Coupons.
ARTICLE ELEVEN.
HOLDERS' MEETINGS.
Sec. 11.01. Purposes of Meetings. A meeting of Holders of Securities of any
or all series may be called at any time and from time to time pursuant to the
provisions of this Article Eleven for any of the following purposes:
(1) to give any notice to the Company or to the Trustee for the
Securities of such series, or to give any directions to the Trustee for
such series, or to consent to the waiving of any default hereunder and its
consequences, or to take any other action authorized to be taken by Holders
pursuant to any of the provisions of Article Eight;
(2) to remove the Trustee for such series and nominate a successor
Trustee pursuant to the provisions of Article Nine;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Sec. 12.01(g); or
(4) to take any other action authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of the Securities
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of any one or more or all series, as the case may be, under any other
provision of this Indenture or under applicable law.
Sec. 11.02. Call of Meetings by Trustee. The Trustee for the Securities of
any series may at any time call a meeting of Holders of Securities of such
series to take any action specified in Sec. 11.01, to be held at such time and
at such place in the Borough of Manhattan, The City of New York, or such other
Place of Payment, as the Trustee for such series shall determine. Notice of
every meeting of the 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 to Holders of Securities of such series in
the manner and to the extent provided in Sec. 14.03. Such notice shall be given
not less than 20 nor more than 90 days prior to the date fixed for the meeting.
Sec. 11.03. Call of Meetings by Company or Holders. In case at any time the
Company, pursuant to a resolution of its Board of Directors, or the Holders of
at least 10% in aggregate principal amount of the Outstanding Securities of any
or all series, as the case may be, shall have requested the Trustee for such
series to call a meeting of Holders of Securities of any or all series, as the
case may be, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee for such series shall not
have given the notice of such meeting within 20 days after receipt of such
request, then the Company or such Holders may determine the time and the place
in the Borough of Manhattan or other Place of Payment for such meeting and may
call such meeting to take any action authorized in Sec. 11.01, by giving notice
thereof as provided in Sec. 11.02.
Sec. 11.04. Qualifications for Voting. To be entitled to vote at any
meeting of Holders a person shall be (a) a Holder of one or more Securities with
respect to which such meeting is being held or (b) a person appointed by an
instrument in writing as proxy by such Holder. The only persons who shall be
entitled to be present or to speak at any meeting of Holders shall be the
persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee for the Securities of the series with respect to
which such meeting is being held and its counsel and any representatives of the
Company and its counsel.
Sec. 11.05. Regulations. Notwithstanding any other provisions of this
Indenture, the Trustee for the Securities of any series may make such reasonable
regulations as it may deem advisable for any meeting of Holders of the
Securities of such 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
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and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of the Securities of such series as provided in Sec.
11.03, in which case the Company or the Holders calling the meeting as the case
may be, shall in like manner appoint a temporary chairman. A permanent chairman
and a permanent secretary of the meeting shall be elected by majority vote of
the meeting.
Subject to the proviso in the definition of "Outstanding", at any meeting
each Holder of Securities with respect to which such meeting is being held or
proxy therefor shall be entitled to one vote for each 1,000 (in the currency or
currency unit in which such Securities are denominated) principal amount (in the
case of Original Issue Discount Securities, such principal amount to be
determined as provided in the definition of "Outstanding") of Securities held or
represented by him; provided, however, that no vote shall be cast or counted at
any meeting in respect of any such Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote other than by virtue of Securities of such
series held by him or instruments in writing aforesaid duly designating him as
the person to vote on behalf of other Holders of such series. At any meeting of
Holders, the presence of persons holding or representing Securities with respect
to which such meeting is being held in an aggregate principal amount sufficient
to take action on the business for the transaction of which such meeting was
called shall constitute a quorum, but, if less than a quorum is present, the
persons holding or representing a majority in aggregate principal amount of such
Securities represented at the meeting may adjourn such meeting with the same
effect, for all intents and purposes, as though a quorum had been present. Any
meeting of Holders of Securities with respect to which a meeting was duly called
pursuant to the provisions of Sec. 11.02 or Sec. 11.03 may be adjourned from
time to time by a majority of such Holders present, whether or not constituting
a quorum, and the meeting may be held as so adjourned without further notice.
Sec. 11.06. Voting. The vote upon any resolution submitted to any meeting
of Holders of Securities with respect to which such meeting is being held shall
be by written ballots on which shall be subscribed the signatures of such
Holders or of their representatives by proxy and the serial number or numbers of
the
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Securities held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Holders 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 mailed as provided in Sec. 11.02. The record shall
show the serial numbers of the Securities voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Company and the other to the Trustee to be preserved by the
Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Sec. 11.07. No Delay of Rights by Meeting. Nothing in this Article Eleven
contained shall be deemed or construed to authorize or permit, by reason of any
call of a meeting of Holders or any rights expressly or impliedly conferred
hereunder to make such call, any hindrance or delay in the exercise of any right
or rights conferred upon or reserved to the Trustee or to the Holders under any
of the provisions of this Indenture or of the Securities of any series.
ARTICLE TWELVE.
SUPPLEMENTAL INDENTURES.
Sec. 12.01. Supplemental Indentures. The Company, when authorized by a
resolution of its Board of Directors, and the Trustee for the Securities of any
or all series may from time to time and at any time enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(a) to evidence the succession of another corporation to the Company,
or successive successions, and the assumption by the successor corporation
of the covenants, agreements and obligations of the Company under the
Indenture and the Securities;
(b) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the Holders of all or any
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series of Securities and the Coupons, if any, appertaining thereto as its
Board of Directors and the Trustee for such series shall consider to be for
the protection of the Holders of such Securities;
(c) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture, or to make such other provisions in regard to
matters or questions arising under this Indenture which shall not be
inconsistent with the provisions of this Indenture and which shall not
adversely affect the interests of the Holders of any Securities or the
Coupons, if any, appertaining thereto in any material respect;
(d) to establish the form or terms of Securities of any series and the
Coupons, if any, appertaining thereto as permitted by Sec. 3.01;
(e) to permit payment in the United States of principal, premium or
interest on Unregistered Securities or of interest on Coupon Securities;
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series or 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 Sec. 9.11; or
(g) if and to the extent authorized by the consent (evidenced as
provided in Sec. 10.01) of the Holders of at least 66 2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, to make such other changes in or additions to or
eliminations from the Indenture as such Holders and the Company may deem
necessary or advisable; provided, however, that no such supplemental
indenture shall (a) without the consent of the Holder of each Outstanding
Security of each such series affected thereby,
(1) change the Stated Maturity of the principal of, or
installment of interest, if any, on, any Security of such series, or
reduce the principal amount thereof or the premium, if any, or the
rate of interest, if any, thereon or change the Place of Payment, or
the currency or currency unit in which any Security of such series or
any premium or interest thereon is payable, or reduce the amount of
the principal of an Original Issue Discount Security that would be due
and payable upon an acceleration of the Maturity thereof pursuant to
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Sec. 8.01 or adversely affect the right of repayment, if any, at the
option of the Holder, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date), or
(2) reduce the requirements of Sec. 11.05 for quorum or voting,
or reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this Sec. 12.01 or Sec. 6.03,
except to increase any such percentage or to provide that certain
other provisions of the Indenture cannot be modified or waived without
the consent of the Holders of each Security of such series affected
thereby, or
(4) (i) if the Securities are Senior Indebtedness, subordinate
the indebtedness evidenced by the Securities to any other indebtedness
of the Company, or (ii) if the Securities are Subordinated
Indebtedness, subordinate the indebtedness evidenced by the Securities
to any indebtedness of the Company other than Senior Indebtedness, or
(iii) if the Securities are Junior Subordinated Indebtedness,
subordinate the indebtedness evidenced by the Securities to any
indebtedness of the Company other than Senior Indebtedness or
Subordinated Indebtedness,
or (b) modify, without the written consent of the Trustee, the rights,
duties or immunities of the Trustee.
Any such supplemental indenture, and this Indenture as so supplemented,
shall conform to the requirements of the Trust Indenture Act of 1939, as amended
and in force at the date of execution of such supplemental indenture.
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 and the Coupons, if any,
appertaining thereto, or which modifies the rights of the Holders of Securities
of such series or any Coupons appertaining thereto with respect to such covenant
or other provision, shall be deemed not to affect the rights under
<PAGE> 97
87
this Indenture of the Holders of Securities of any other series or any Coupons
appertaining thereto.
The Trustee with respect to any series of Securities affected by such
supplemental indenture is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations which may be therein contained, but such
Trustee shall not be obligated to enter into any such supplemental indenture
which affects such Trustee's own rights, duties or immunities under this
Indenture or otherwise.
For purposes of this Sec. 12.01, 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.
Sec. 12.02. Notice of Supplemental Indenture. Promptly after the execution
by the Company and the appropriate Trustee of any supplemental indenture
pursuant to Sec. 12.01(g), the Company shall notify as provided in Sec. 14.03
all Holders of any series of Securities and of any Coupons appertaining thereto
affected by such supplemental indenture as to the general terms the substance of
such supplemental indenture.
Sec. 12.03. Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article Twelve, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith, but only with regard to the Securities of each series affected by
such supplemental indenture, and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee for the
Securities of such series, the Company and Holders of any Securities of such
series or of any Coupons appertaining thereto shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes with regard to the Securities of such series
and of any Coupons appertaining thereto.
<PAGE> 98
88
Sec. 12.04. Notation on Securities and Coupons. Securities of any series
(including any Coupons appertaining thereto) affected by any supplemental
indenture which are authenticated and delivered after the execution of such
supplemental indenture pursuant to the provisions of this Article Twelve may
bear a notation in form approved by the Trustee for such series as to any matter
provided for in such supplemental indenture. If the Company or the Trustee shall
so determine, new Securities of any series and any Coupons appertaining thereto
so modified as to conform, in the opinion of the Trustee and the Board of
Directors of the Company, to any modification of this Indenture contained in any
such supplemental indenture may be prepared by the Company, authenticated by the
Trustee and delivered in exchange for the Securities of such series and any
Coupons appertaining thereto then Outstanding.
Sec. 12.05. Issuance of Securities by Successor Corporation. In case the
Company shall be consolidated with or merged into any other corporation or
corporations, or shall convey or transfer all or substantially all its property
as an entirety, the successor corporation formed by such consolidation or into
which the Company shall have been merged or which shall have received a
conveyance or transfer as aforesaid, upon causing to be executed and delivered
the supplemental indenture referred to in Sec. 12.01(a), shall succeed to and be
substituted for the Company with the same effect as if it had been named herein
as the party of the first part and in all of the Securities and the Coupons, if
any, appertaining thereto as obligor, and thereupon and thereafter such
successor corporation may cause to be executed, either in its own name or in the
name of Associates First Capital Corporation, and delivered to the appropriate
Trustee for authentication, any or all of the Securities and the Coupons, if
any, appertaining thereto issuable hereunder; and upon the order of such
successor corporation in lieu of the Company, and subject to all the terms,
conditions and restrictions in this Indenture prescribed, the Trustee for the
Securities of the appropriate series shall authenticate and deliver any
Securities of such series and the Coupons, if any, appertaining thereto which
shall have been previously executed and delivered by the Company to the Trustee
for authentication, and any Securities and the Coupons, if any, appertaining
thereto which such successor corporation shall thereafter, in accordance with
the provisions of this Indenture, cause to be executed and delivered to the
Trustee for such purpose. Such change in phraseology and form (but not in
substance) may be made in such Securities and the Coupons, if any, appertaining
thereto as may be appropriate in view of such consolidation or merger or
conveyance or transfer. All such Securities and the Coupons, if any,
appertaining thereto when issued by such successor corporation shall in all
respects have
<PAGE> 99
89
the same legal rank as the Securities and the Coupons, if any, appertaining
thereto theretofore or thereafter authenticated and delivered in accordance with
the terms of this Indenture and issued, as though all of such Securities and the
Coupons, if any, appertaining thereto had been issued at the date of the
execution hereof.
ARTICLE THIRTEEN.
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS.
Sec. 13.01 Satisfaction and Discharge. If (a) the Company shall deliver to
the Trustee for the Securities of any series for cancellation all Securities of
all series and the Coupons, if any, appertaining thereto for which such Trustee
is Trustee theretofore authenticated (other than any Securities of any such
series and the Coupons, if any, appertaining thereto which shall have been
destroyed, lost or stolen) and not theretofore cancelled, or (b) all the
Securities of all such series and the Coupons, if any, appertaining thereto not
theretofore cancelled or delivered to the applicable Trustee for cancellation
shall have become due and payable, or are by their terms to become due and
payable within one year or are to be called for redemption within one year under
arrangement satisfactory to the Trustee for the giving of notice of redemption,
and the Company shall deposit with the Trustee as trust funds the entire amount
sufficient to pay at maturity or upon redemption in the currency or currency
unit required all of the Securities of all such series and the Coupons, if any,
appertaining thereto (other than any Securities and the Coupons, if any,
appertaining thereto which shall have been destroyed, lost or stolen and in lieu
of or substitution for which other Securities and the Coupons, if any,
appertaining thereto, shall have been authenticated and delivered) not
theretofore cancelled or delivered to the Trustee for cancellation, including
principal due or to become due to such date of Maturity or Redemption Date, as
the case may be, and if in either case the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company, then this Indenture shall
cease to be of further effect with respect to all such series (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for) and the Trustee, on demand of the Company accompanied by
an Officers' Certificate, complying with the provisions of Sec. 1.03, stating
that all conditions precedent relating to the satisfaction and discharge of the
Indenture with respect to all such series (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided
for) have been complied with, and an Opinion of Counsel, complying with the
provisions of
<PAGE> 100
90
Sec. 1.03, stating that in the opinion of such counsel such conditions precedent
have been complied with, and at the cost and expense of the Company, shall
execute proper instruments acknowledging satisfaction of and discharging this
Indenture with respect to all such series (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided
for) the Company, however, hereby agreeing to reimburse the Trustee in Dollars
for any costs or expenses thereafter reasonably and properly incurred by the
Trustee in connection with this Indenture or the Securities.
Sec. 13.02. Application of Moneys. All moneys deposited with the Trustee
for the Securities of any series and the Coupons, if any, appertaining thereto
pursuant to Sec. 13.01 shall be held in trust by the Trustee and applied by it
to the payment, either directly or through any Paying Agent for such series
(including the Company acting as its own Paying Agent), to the Holders of the
particular Securities and the Coupons, if any, appertaining thereto for the
payment or redemption of which such moneys have been deposited with the Trustee,
of all sums due and to become due thereon for principal, premium, if any, and
interest, if any.
Sec. 13.03. Repayment of Moneys by Paying Agents. Except as provided in
Sec. 13.04, upon the satisfaction and discharge of this Indenture with respect
to the Securities of any series and the Coupons, if any, appertaining thereto
all moneys with respect to such series then held by any Paying Agent for such
series under the provisions of this Indenture shall, upon demand of the Company,
be repaid to it and thereupon such Paying Agent shall be released from all
further liability with respect to such moneys.
Sec. 13.04. Unclaimed Moneys. Any moneys deposited with the Trustee for the
Securities of any series and the Coupons, if any, appertaining thereto for the
payment of the principal of, premium, if any, or interest, if any, on Securities
of such series and the Coupons, if any, appertaining thereto and which shall not
be applied but shall remain unclaimed by the Holders of Securities of such
series and the Coupons, if any, appertaining thereto for two years after the
date upon which such payment shall have become due and payable, shall be repaid
to the Company by the Trustee on demand; and the Holder of any of such
Securities or the Coupons, if any, appertaining thereto entitled to receive such
payment shall thereafter look only to the Company for the payment thereof;
provided, however, that the Trustee, before making any such repayment, shall at
the expense of the Company cause to be published once a week for two successive
weeks (in each case on any day of the week) in an Authorized Newspaper, a notice
that said moneys have not been so applied
<PAGE> 101
91
and that after a date named therein any unclaimed balance of said moneys then
remaining will be returned to the Company.
ARTICLE FOURTEEN.
MISCELLANEOUS PROVISIONS.
Sec. 14.01. Limitation of Individual Liability. No recourse under or upon
any obligation, covenant or agreement of this Indenture, or of any Security or
Coupon, or for any claim based thereon or otherwise in respect thereof, shall be
had against any incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or of any successor corporation, either
directly or through the Company, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that this Indenture and the obligations issued
hereunder are solely corporate obligations, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors, as such, of the Company or of any successor
corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or Coupons or implied
therefrom; and that any and all such personal liability of every name and
nature, either at common law or in equity or by constitution or statute, of, and
any and all such rights and claims against, every such incorporator,
stockholder, officer or director, as such, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or Coupons or implied therefrom, are hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of such Securities and Coupons, if any.
Sec. 14.02. Successors. All the covenants, stipulations, promises and
agreements in this Indenture contained by or in behalf of the Company shall bind
its successors and assigns, whether so expressed or not.
Sec. 14.03. Notice to Holders; Waiver. Where this Indenture provides for
notice to Holders of any event, (1) if any of the Securities affected by such
event are Fully Registered Securities, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed by first
class mail, postage prepaid, to such Holders as their names and addresses appear
in the Securities Register within the time prescribed and (2) if any of
<PAGE> 102
92
the Securities affected by such event are Unregistered Securities, or Coupon
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed by first class mail, postage
prepaid, to such Holders in the manner and to the extent provided in
Sec. 7.04(c) and if published in an Authorized Newspaper or Newspapers in such
city or cities as may be provided elsewhere in this Indenture or specified as
contemplated by Sec. 3.01 on a Business Day at least twice, the first such
publication to be not earlier than the earliest date and not later than the
latest date prescribed for the giving of such notice. 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
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance on such waiver. 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, and any
notice which is mailed in the manner herein provided shall be conclusively
presumed to have been duly given. In case by reason of the suspension of
publication of any Authorized Newspapers or by reason of any other cause it
shall be impracticable to publish any notice to Holders of Unregistered
Securities or of Coupons as provided above then said notification to Holders of
Unregistered Securities or of Coupons as shall be given with the approval of the
Trustee shall constitute sufficient notice to such Holders for every purpose
hereunder.
Sec. 14.04. Addresses for Notices. Any notice or demand which by any
provision of this Indenture is required or permitted to be given or served by
the Trustee for the Securities of any series or by the Holders of Securities of
any series or of any Coupons appertaining thereto on the Company may be given or
served by registered mail addressed (until another address is filed by the
Company with the Trustee) as follows: ASSOCIATES FIRST CAPITAL CORPORATION
Attention: General Counsel, 250 E. Carpenter Freeway, Irving, Texas 75062. Any
notice, direction, request or demand by any Holder of Securities of any series
to or upon the Trustee for such series or of any Coupons appertaining thereto
shall be deemed to have been sufficiently given or made, for all purposes, if
given or made at the Corporate Trust Office of such Trustee, and, in respect of
Unregistered Securities or Coupons, at the corporate trust office of the Trustee
referred to in Sec. 6.02(1). Any notice or demand required or permitted under
this Indenture shall be in the English language, except that
<PAGE> 103
93
any published notice may be in the official language of the country of
publication.
Sec. 14.05. Cross References. All references herein to "Articles" and other
subdivisions are to the corresponding Articles or other subdivisions of this
Indenture; references by the symbol "Sec." are to corresponding Sections of this
Indenture; and the words "herein", "hereof", "hereby", "hereunder",
"hereinbefore" and "hereinafter" and other words of similar purport refer to
this Indenture generally and not to any particular Article, Section or other
subdivision hereof.
Sec. 14.06. Counterparts. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
Sec. 14.07. Headings Not to Affect Construction. The headings of the
Articles, Sections and other subdivisions hereof herein are for convenience only
and shall not affect the construction hereof.
Sec. 14.08. Trust Indenture Act to Govern. 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.
Sec. 14.09. Legal Holidays. In any case where the date of maturity of
interest on or principal of (or premium, if any) on the Securities or Coupons or
the date fixed for redemption or repayment of any Security shall not be a
Business Day at any Place of Payment with respect to Securities of that series
then (notwithstanding any other provisions of this Indenture or of the Security
or Coupons) payment of such interest on or principal of (or premium, if any, on)
the Securities and Coupons need not be made on such date in such Place of
Payment but may be made on the next succeeding Business Day in such Place of
Payment with the same force and effect as if made on the date of maturity or the
date fixed for redemption or repayment, as the case may be, and no interest
shall accrue for the period from and after such date.
SEC. 14.10. APPLICABLE LAW. THIS INDENTURE AND EACH SECURITY FOR ALL
PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
<PAGE> 104
94
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES.
Sec. 15.01. Subordination. Anything in this Indenture or the Securities of
any series, or any Coupons appertaining thereto, to the contrary
notwithstanding, the Indebtedness evidenced by the Securities of all series and
any Coupons appertaining thereto shall be subordinate and junior in right of
payment in all respects to all Senior Indebtedness of the Company, whether
outstanding at the date of this Indenture or incurred after the date of this
Indenture. Such Indebtedness of the Company to which the Securities and any
Coupons appertaining thereto are subordinate and junior is sometimes herein
referred to as "Superior Indebtedness".
Without limiting the effect of the foregoing, "subordinate" and "junior" as
used herein shall include within their meanings the following: that (i) in the
event of any insolvency or bankruptcy proceedings, and any receivership,
liquidation, reorganization or other similar proceedings in connection
therewith, relative to the Company or its creditors or its property, and in the
event of any proceedings for voluntary liquidation, dissolution or other winding
up of the Company, whether or not involving insolvency or bankruptcy
proceedings, then all principal and interest on all Superior Indebtedness shall
first be paid in full, or such payment be provided for, before any payment on
account of principal or interest is made upon the Indebtedness evidenced by the
Securities of any series and any Coupons appertaining thereto, and in any such
proceedings any payment or distribution of any kind or character, whether in
cash or property or securities, which may be payable or deliverable in respect
of the Securities of any series and any Coupons appertaining thereto shall be
paid or delivered directly to the holders of such Superior Indebtedness for
application in payment thereof, unless and until such Superior Indebtedness
shall have been paid and satisfied in full or such payment and satisfaction
shall have been provided for; provided, however, that (x) in the event that
payment or delivery of such cash, property or securities to the Holders of the
Securities of any series and to the Holders of any Coupons appertaining thereto
is authorized by an order or decree giving effect, and stating in such order or
decree that effect is given, to the subordination of the Securities of all
series and any Coupons appertaining thereto to Superior Indebtedness, and made
by a court of competent jurisdiction in a reorganization proceeding under any
applicable bankruptcy law, no payment or delivery of such cash, property or
securities payable or deliverable with respect to the Securities of any series
and any Coupons appertaining thereto need be made to the holders of Superior
<PAGE> 105
95
Indebtedness; and (y) no such delivery need be made of securities which are
issued pursuant to voluntary reorganization, dissolution or liquidation
proceedings, or upon any merger, consolidation, sale, lease, transfer or other
disposal not prohibited by Sec. 6.02 of this Indenture, by the Company, as
reorganized, or by the New Company, and which securities are subordinate and
junior to the payment of all Superior Indebtedness then outstanding; and (ii) in
the event that pursuant to Article Eight of this Indenture the Securities of any
series are declared due and payable because of the occurrence of any Event of
Default described in Article Eight of this Indenture (under circumstances when
the provisions of the foregoing clause (i) shall not be applicable), the Holders
of Securities of such series and the Holders of any Coupons appertaining
thereto, and the Trustee, on their behalf (but not with respect to its own
compensation and expenses), shall be entitled to payment only after there shall
first have been paid in full the Superior Indebtedness outstanding at the time
Securities of such series and any Coupons appertaining thereto so become due and
payable because of such Event of Default, or such payment shall have been
provided for. No present or future holder of Superior Indebtedness shall be
prejudiced in his right to enforce subordination of the Securities of all series
and any Coupons appertaining thereto by any act or failure to act on the part of
the Company. The provisions of this Article Fifteen are solely for the purpose
of defining the relative rights of the holders of Superior Indebtedness on the
one hand, and the Holders of the Securities of all series and the Holders of any
Coupons appertaining thereto on the other hand, and nothing herein shall impair,
as between the Company and the Holder of any Security of any series or of any
Coupon appertaining thereto, the obligation of the Company, which is
unconditional and absolute, to pay to the Holder thereof the principal, premium,
if any, and interest, if any, thereon in accordance with its terms, nor shall
anything herein prevent the Holder of a Security of any series or of any Coupon
appertaining thereto or the Trustee on behalf of the Holders of the Securities
of all series or of any Coupons appertaining thereto from exercising all
remedies otherwise permitted by applicable law or hereunder upon default
hereunder, subject to the rights, if any, under this Article Fifteen of holders
of Superior Indebtedness to receive cash, property or securities otherwise
payable or deliverable to the Holders of the Securities of any series or of any
Coupons appertaining thereto.
Sec. 15.02. Securities May be Paid Prior to Dissolution, etc. Nothing
contained in this Article Fifteen or elsewhere in this Indenture, or in the
Securities of any series or any Coupons appertaining thereto, shall prevent (a)
the Company, at any time except under the conditions described in Sec. 15.01 or
<PAGE> 106
96
during the pendency of any dissolution or winding up or total or partial
liquidation or reorganization proceedings therein referred to, from making
payments at any time of principal of and premium, if any, or interest, if any,
on Securities of any series or payments of any Coupons appertaining thereto or
from depositing with the Trustee or any Paying Agent moneys for such payments,
or (b) the application by the Trustee or any Paying Agent of any moneys
deposited with it under this Indenture to the payment of or on account of the
principal of and premium, if any, or interest, if any, on Securities of any
series or payments of any Coupons appertaining thereto to the Holders of
Securities of such series or of any Coupon appertaining thereto entitled thereto
if such payment would not have been prohibited by the provisions of Sec. 15.01
on the date such moneys were so deposited.
Notwithstanding the provisions of Sec. 15.01 or any other provision of this
Indenture, the Trustee and any Paying Agent shall not be charged with knowledge
of the existence of any Superior Indebtedness or of any facts which would
prohibit the making of any payment of moneys to or by the Trustee or such Paying
Agent, unless and until the Trustee or such Paying Agent shall have received
written notice thereof from the Company or from a holder of such Superior
Indebtedness; and, prior to the receipt of any such written notice, the Trustee
shall be entitled in all respects to assume that no such facts exist; provided,
that, if 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 and premium, if any, or interest, if any, on the Securities of
any series or the payment of any Coupons appertaining thereto) the Trustee or
such Paying Agent shall not have received with respect to such moneys the notice
provided for in this Sec. 15.02, then, anything herein contained to the contrary
notwithstanding, the Trustee and such Paying Agent shall have full power and
authority to receive such moneys and 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 after such date.
Sec. 15.03. Rights of the Holders of Superior Indebtedness Not to be
Impaired. Neither the Trustee nor any Paying Agent shall be deemed to owe any
fiduciary duty to the holders of Superior Indebtedness, and shall not be liable
to any such holders if either shall mistakenly pay over or distribute to or on
behalf of Holders of Securities of any series or of any Coupons appertaining
thereto or the Company moneys or assets to which any holders of Superior
Indebtedness shall be entitled by virtue of this Article Fifteen.
<PAGE> 107
97
The Trustee shall be entitled to all the rights set forth in this Article
Fifteen with respect to any Superior Indebtedness which may at any time be held
by it, to the same extent as any other holder of Superior Indebtedness, and
nothing in Sec. 9.13, or elsewhere in this Indenture, shall deprive the Trustee
of any of its rights as such holder.
Sec. 15.04. Authorization to Trustee to Take Action to Effectuate
Subordination. Each Holder of a Security of any series 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 as provided in this
Article Fifteen and appoints the Trustee his attorney-in-fact for any and all
such purposes.
<PAGE> 1
EXHIBIT 4.2
================================================================================
ASSOCIATES FIRST CAPITAL CORPORATION
AND
THE CHASE MANHATTAN BANK,
Trustee
----------------------------
INDENTURE
----------------------------
Dated as of September 1, 1998
----------------------------
Senior Debt Securities
================================================================================
<PAGE> 2
INDENTURE, dated as of September 1, 1998, between ASSOCIATES FIRST
CAPITAL CORPORATION, a Delaware corporation (the "Company"), and The Chase
Manhattan Bank, a New York Banking corporation, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company is authorized to borrow money for its corporate
purposes and to issue debentures, notes or other evidences of indebtedness
therefor; and for its corporate purposes, the Company has determined to make
and issue its debentures, notes or other evidences of indebtedness to be issued
in one or more series (the "Securities"), as hereinafter provided, up to such
principal amount or amounts as may from time to time be authorized by or
pursuant to the authority granted in one or more resolutions of the Board of
Directors.
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:
That, in consideration of the premises and of the mutual covenants
herein contained and of the purchase and acceptance of the Securities by the
holders thereof and of the sum of One Dollar to the Company duly paid by the
Trustee at or before the ensealing and delivery of these presents, and for
other valuable consideration, the receipt whereof is hereby acknowledged, and
in order to declare the terms and conditions upon which the Securities are to
be issued, IT IS HEREBY COVENANTED, DECLARED AND AGREED, by and between the
parties hereto, that all the Securities are to be executed, authenticated and
delivered subject to the further covenants and conditions hereinafter set
forth; and the Company, for itself and its successors, does hereby covenant and
agree to and with the Trustee and its successors in said trust, for the benefit
of those who shall hold the Securities, or any of them, as follows:
PARAGRAPH A. INCORPORATION BY REFERENCE
Articles One through Fourteen, other than clauses (i) and (ii) of
Section 12.01(g)(4), of the Associates First Capital Corporation Standard
Multiple-Series Indenture Provisions dated as of September 1, 1998 (herein
called the "Standard Provisions"), are hereby incorporated herein by reference
with the same force and effect as though fully set out herein.
PARAGRAPH B. ADDITIONAL PROVISIONS
The following provisions, which constitute part of this Indenture,
are numbered to conform with the format of the Standard Provisions:
Section 9.07. Compensation and Reimbursement
* * *
<PAGE> 3
(h) When Trustee incurs expenses or renders
services in connection with an Event of Default specified in
Section 8.01(4) or Section 8.01(5), such expenses (including
the fees and expenses of its counsel) and the compensation for
such services are intended to constitute expenses of
administration under any bankruptcy or insolvency law or any
law affecting creditors rights generally.
In the event that the Trustee is also acting
as Paying Agent or Registrar hereunder, the rights and
protections afford to the Trustee hereunder shall also be
afforded to such paying Agent or Registrar.
Section 9.15. Other Matters Concerning the Trustee.
At the date of this Indenture, the Corporate Trust Office of the
Trustee is located at 450 West 33rd Street, 15th Floor, New York, NY 10001,
Attn: Corporate Trust Department. Anything in Section 6.02(1) to the contrary
notwithstanding, the office or agency of the Company in the Borough of
Manhattan, The City of New York, where Securities of any series may be
presented or surrendered for payment, where Securities of such 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 such series and
this Indenture may be served, shall initially be the corporate trust facility
of the Trustee in the Borough of Manhattan, The City of New York, which at the
date of this Indenture is located at Chase Institutional Trust Window, 1 Chase
Manhattan Plaza, 1B, New York, New York 10081.
Section 12.01. Supplemental Indentures
* * *
(h) Prior to entering into any supplemental
indenture, the Trustee shall be entitled to receive (i) an
opinion of the Company's corporate counsel addressed to the
Trustee as to matters the Trustee may reasonably request and
(ii) an Officer's Certificate of the Company attesting to such
matters as the Trustee may reasonably request.
Section 14.10. Applicable Law
THIS INDENTURE AND EACH SECURITY FOR ALL PURPOSES SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
2
<PAGE> 4
IN WITNESS WHEREOF, ASSOCIATES FIRST CAPITAL CORPORATION, has
caused this Indenture to be signed in its corporate name by the Chairman of the
Board, any Vice Chairman, its President or any Vice President, and its
corporate seal to be affixed hereunto, and the same to be attested by the
signature of its Secretary or an Assistant Secretary; and THE CHASE MANHATTAN
BANK in evidence of its acceptance of the trust hereby created, has caused this
Indenture to be signed in its corporate name, and its corporate seal to be
affixed hereunto, and the same to be attested, as of the day and year first
above written.
ASSOCIATES FIRST CAPITAL
CORPORATION
[SEAL]
By:
-------------------------
Title:
Attest:
---------------------------------
Title:
THE CHASE MANHATTAN BANK,
as Trustee
[SEAL]
By:
-------------------------
Title:
Attest:
---------------------------------
Title:
3
<PAGE> 1
EXHIBIT 4.3
================================================================================
ASSOCIATES FIRST CAPITAL CORPORATION
AND
THE CHASE MANHATTAN BANK,
Trustee
---------------------
INDENTURE
---------------------
Dated as of September 1, 1998
---------------------
Subordinated Debt Securities
================================================================================
<PAGE> 2
INDENTURE, dated as of September 1, 1998, between ASSOCIATES FIRST
CAPITAL CORPORATION, a Delaware corporation (the "Company"), and The Chase
Manhattan Bank, a New York Banking corporation, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company is authorized to borrow money for its corporate purposes
and to issue debentures, notes or other evidences of indebtedness therefor; and
for its corporate purposes, the Company has determined to make and issue its
debentures, notes or other evidences of indebtedness to be issued in one or
more series (the "Securities"), as hereinafter provided, up to such principal
amount or amounts as may from time to time be authorized by or pursuant to the
authority granted in one or more resolutions of the Board of Directors.
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:
That, in consideration of the premises and of the mutual covenants
herein contained and of the purchase and acceptance of the Securities by the
holders thereof and of the sum of One Dollar to the Company duly paid by the
Trustee at or before the ensealing and delivery of these presents, and for
other valuable consideration, the receipt whereof is hereby acknowledged, and
in order to declare the terms and conditions upon which the Securities are to
be issued, IT IS HEREBY COVENANTED, DECLARED AND AGREED, by and between the
parties hereto, that all the Securities are to be executed, authenticated and
delivered subject to the further covenants and conditions hereinafter set
forth; and the Company, for itself and its successors, does hereby covenant and
agree to and with the Trustee and its successors in said trust, for the benefit
of those who shall hold the Securities, or any of them, as follows:
PARAGRAPH A. INCORPORATION BY REFERENCE
Articles One through Fifteen, other than clauses (i) and (ii) of
Section 12.01(g)(4), of the Associates First Capital Corporation Standard
Multiple-Series Indenture Provisions dated as of September 1, 1998 (herein
called the "Standard Provisions"), are hereby incorporated herein by reference
with the same force and effect as though fully set out herein.
PARAGRAPH B. ADDITIONAL PROVISIONS
The following provisions, which constitute part of this Indenture,
are numbered to conform with the format of the Standard Provisions:
Section 9.07. Compensation and Reimbursement
* * *
<PAGE> 3
(h) When Trustee incurs expenses or renders
services in connection with an Event of Default specified in
Section 8.01(4) or Section 8.01(5), such expenses (including
the fees and expenses of its counsel) and the compensation for
such services are intended to constitute expenses of
administration under any bankruptcy or insolvency law or any
law affecting creditors rights generally.
In the event that the Trustee is also acting
as Paying Agent or Registrar hereunder, the rights and
protections afford to the Trustee hereunder shall also be
afforded to such paying Agent or Registrar.
Section 9.15. Other Matters Concerning the Trustee.
At the date of this Indenture, the Corporate Trust Office of the
Trustee is located at 450 West 33rd Street, 15th Floor, New York, NY 10001,
Attn: Corporate Trust Department. Anything in Section 6.02(1) to the contrary
notwithstanding, the office or agency of the Company in the Borough of
Manhattan, The City of New York, where Securities of any series may be
presented or surrendered for payment, where Securities of such 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 such series and
this Indenture may be served, shall initially be the corporate trust facility
of the Trustee in the Borough of Manhattan, The City of New York, which at the
date of this Indenture is located at Chase Institutional Trust Window, 1 Chase
Manhattan Plaza, 1B, New York, New York 10081.
Section 12.01. Supplemental Indentures
* * *
(h) Prior to entering into any supplemental
indenture, the Trustee shall be entitled to receive (i) an
opinion of the Company's corporate counsel addressed to the
Trustee as to matters the Trustee may reasonably request and
(ii) an Officer's Certificate of the Company attesting to such
matters as the Trustee may reasonably request.
Section 14.10. Applicable Law
THIS INDENTURE AND EACH SECURITY FOR ALL PURPOSES SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
2
<PAGE> 4
IN WITNESS WHEREOF, ASSOCIATES FIRST CAPITAL CORPORATION, has caused
this Indenture to be signed in its corporate name by the Chairman of the Board,
any Vice Chairman, its President or any Vice President, and its corporate seal
to be affixed hereunto, and the same to be attested by the signature of its
Secretary or an Assistant Secretary; and THE CHASE MANHATTAN BANK in evidence
of its acceptance of the trust hereby created, has caused this Indenture to be
signed in its corporate name, and its corporate seal to be affixed hereunto,
and the same to be attested, as of the day and year first above written.
ASSOCIATES FIRST CAPITAL
CORPORATION
[SEAL]
By:
-----------------------------
Title:
Attest:
-------------------------------
Title:
THE CHASE MANHATTAN BANK,
as Trustee
[SEAL]
By:
-----------------------------
Title:
Attest:
-------------------------------
Title:
3
<PAGE> 1
EXHIBIT 4.4
================================================================================
ASSOCIATES FIRST CAPITAL CORPORATION
AND
THE CHASE MANHATTAN BANK,
Trustee
------------------------------
INDENTURE
------------------------------
Dated as of September 1, 1998
------------------------------
Junior Subordinated Debt Securities
================================================================================
<PAGE> 2
INDENTURE, dated as of September 1, 1998, between ASSOCIATES
FIRST CAPITAL CORPORATION, a Delaware corporation (the "Company"), and The
Chase Manhattan Bank, a New York Banking corporation, as Trustee (the
"Trustee").
RECITALS OF THE COMPANY
The Company is authorized to borrow money for its corporate
purposes and to issue debentures, notes or other evidences of indebtedness
therefor; and for its corporate purposes, the Company has determined to make
and issue its debentures, notes or other evidences of indebtedness to be issued
in one or more series (the "Securities"), as hereinafter provided, including,
without limitation, Securities issued to evidence loans made to the Company of
the proceeds from the issuance by one or more Associates Trusts (as defined
below) of trust securities in such Associates Trusts, up to such principal
amount or amounts as may from time to time be authorized by or pursuant to the
authority granted in one or more resolutions of the Board of Directors.
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:
That, in consideration of the premises and of the mutual
covenants herein contained and of the purchase and acceptance of the Securities
by the holders thereof and of the sum of One Dollar to the Company duly paid by
the Trustee at or before the ensealing and delivery of these presents, and for
other valuable consideration, the receipt whereof is hereby acknowledged, and
in order to declare the terms and conditions upon which the Securities are to
be issued, IT IS HEREBY COVENANTED, DECLARED AND AGREED, by and between the
parties hereto, that all the Securities are to be executed, authenticated and
delivered subject to the further covenants and conditions hereinafter set
forth; and the Company, for itself and its successors, does hereby covenant and
agree to and with the Trustee and its successors in said trust, for the benefit
of those who shall hold the Securities, or any of them, as follows:
PARAGRAPH A. INCORPORATION BY REFERENCE
Articles One through Fifteen, other than clauses (i) and (ii) of
Section 12.01(g)(4), the second paragraph of Section 8.01 and the first
paragraph of Section 15.01, of the Associates First Capital Corporation
Standard Multiple-Series Indenture Provisions dated as of September 1, 1998
(herein called the "Standard Provisions"), are hereby incorporated herein by
reference with the same force and effect as though fully set out herein.
<PAGE> 3
PARAGRAPH B. ADDITIONAL PROVISIONS
The following provisions, which constitute part of this
Indenture, are numbered to conform with the format of the Standard Provisions:
Section 1.01 Certain Definitions.
* * *
Associates Trust:
"Associates Trust" shall mean a statutory business trust created
under Delaware law pursuant to a trust agreement executed by the Company, as
depositor of such Associates Trust, and the trustees of such Associates Trust
named therein and pursuant to a certificate of trust filed with the Delaware
Secretary of State, which Associates Trust exists for the purposes of (i)
issuing and selling its trust securities, (ii) using the proceeds from the sale
of such trust securities to acquire a series of Securities issued by the
Company under this Indenture and (iii) engaging in only those other activities
necessary, convenient or incidental thereto.
Section 3.01. Amount Unlimited; Issuable in Series.
* * *
(20) any provisions relating to extending or shortening the date
on which the principal and premium, if any, of the Securities of such series is
payable;
(21) any provisions relating to the deferral of payment of any
interest;
(22) if other than as set forth herein, the relative degree, if
any, to which the Securities of such series shall be subordinated to other
series of Securities in right of payment, whether Outstanding or not;
(23) any addition to or change in the covenants set forth in
Article X which applies to Securities of such series;
(24) if such Securities are to be issued to an Associates Trust,
the forms of the related trust agreement and guarantee agreement relating
thereto; and
(25) the additions or changes, if any, to this Indenture with
respect to the Securities of such series as shall be necessary to permit or
facilitate the issuance of such Securities to an Associates Trust.
Section 6.02. Other Covenants. The Company --
* * *
-2-
<PAGE> 4
Costs and Expenses of Associates Trust:
(13) As borrower, agrees to pay all debts and obligations
(other than with respect to the Trust Securities) and all costs and expenses of
the applicable Associates Trust (including, but not limited to, all costs and
expenses relating to the organization of the applicable Associates Trust, the
fees and expenses of the Property Trustee, the Delaware Trustee and the
Administrative Trustee and all costs and expenses relating to the operation of
the applicable Associates Trust (other than with respect to the Trust
Securities)) and to pay any and all taxes, duties, assessments or other
governmental charges of whatever nature (other than United States withholding
taxes) imposed by the United States or any other taxing authority, so that the
net amounts received and retained by the applicable Associates Trust after
paying such fees, expenses, debts and obligations will be equal to the amounts
the applicable Associates Trust would have received and retained had no such
fees, expenses, debts and obligations been incurred by or imposed on the
applicable Associates Trust. The foregoing obligations of the Company are for
the benefit of, and shall be enforceable by, any person to whom such fees,
expenses, debts and obligations are owed (each, a "Creditor"), whether or not
such Creditor has received notice thereof. Any such Creditor may enforce such
obligations of the Company directly against the Company, and the Company
irrevocably waives any right or remedy to require that any such Creditor take
any action against the applicable Associates Trust or any other person before
proceeding against the Company. The Company shall execute such additional
agreements as may be necessary to give full effect to the foregoing.
Section 6.03. Waiver.
The following clause shall be added to the end of Section 6.03:
; provided that, in the case of Securities of a series issued to
an Associates Trust, so long as any of the related preferred
securities of such Associates Trust remains outstanding, no such
waiver may be made without the prior consent of the holders of
not less than 66 2/3% of the aggregate liquidation amount of such
preferred securities then outstanding.
Section 8.01. Events of Default; Effect Thereof.
The following paragraph replaces the second paragraph of Section
8.01:
If an Event of Default with respect to Securities of any series
at the time outstanding shall have occurred and be continuing, then and in each
and every such case, unless the principal of all the Securities of such series
shall have already become due and payable, either the Trustee for such series
or the holders of not less than 25% in aggregate principal amount of the
Securities of such series then Outstanding hereunder (or, in the case of the
Securities of a series issued to an Associates Trust, so long as any of the
related preferred securities of such Associates Trust remain outstanding, if,
upon such Event of Default, the Trustee of such series or the Holders of not
less than 25% in aggregate principal amount of the Securities of such series
then Outstanding hereunder fail to declare the principal of all the Securities
of such series to be so immediately due and payable, the holders of 25% in
aggregate liquidation amount of the related
-3-
<PAGE> 5
preferred securities of such Associates Trust then outstanding shall have such
right), by notice in writing to the Company (and to the Trustee if given by the
Holders or the holders of such related preferred securities), may declare the
principal amount (or, if the Securities of such series are Original Issue
Discount Securities, such portion of the principal amount as may be specified
in the terms of that series) of all the Securities of such series to be due and
payable immediately, and upon any such declaration the same shall become and
shall be immediately due and payable, anything in this Indenture or in the
Securities of such series contained to the contrary notwithstanding. This
provision, however, is subject to the condition that if, at any time after the
principal amount (or if the Securities of such series are Original Issue
Discount Securities, such portion of the principal amount as may be specified
in the terms of such series) of the Securities of any series shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided, the
Company shall pay or shall deposit with the Trustee for such series a sum
sufficient to pay in the currency or currency unit in which the Securities of
such series are payable (except as otherwise specified as contemplated by
Section 3.01 for the Securities of such series and except as provided in
Sections 3.11(b), 3.11(e) and 3.11(f) of this Indenture), all matured
installments of interest, if any, upon all the Securities of such series and
(in the currency or currency unit described above) the principal of (and
premium, if any, on) any and all Securities of such series which shall have
become due otherwise than by acceleration (with interest on such principal and
premium, if any, and, so far as payment of the same is enforceable under
applicable law, on overdue installments of interest, at the Overdue Rate
applicable to such series to the date of such payment or deposit) and in
Dollars all amounts payable to the Trustee pursuant to the provisions of
Section 9.07 and any and all defaults under this Indenture with respect to
such series of Securities, other than the nonpayment of principal of and
accrued interest on Securities of such series which shall have become due by
acceleration, shall have been remedied or cured or waived or provision shall
have been made therefor to the satisfaction of the Trustee -- then and in every
such case the Holders of a majority in aggregate principal amount of the
Securities of such series then Outstanding, by written notice to the Company
and to the Trustee, may waive all defaults and its consequences; provided, that
in the case of such Securities of a series issued to an Associates Trust, so
long as any of the related preferred securities of such Associates Trust remain
outstanding, the holders of a majority in aggregate liquidation amount of such
preferred securities shall also have such right to waive all defaults and its
consequences with respect to such Securities, subject to the same conditions
set forth above; but no such waiver or rescission and annulment shall extend to
or shall affect any subsequent default, or shall impair any right consequent
thereon.
Section 8.04. Limitation on Suits on Indenture; No Limitation on
Suits on Securities.
The following clause shall be added to the end of the second
paragraph of Section 8.04:
* * *
; provided, that, in the case of Securities of a series issued to
an Associates Trust, any holder of the related preferred
securities of such Associates Trust shall have the right, upon
the occurrence and continuance of an Event of Default described
in
-4-
<PAGE> 6
Sections 8.01(1) and (2) hereof, to institute a suit directly
against the Company to enforce payment to such holder of the
principal of, and premium, if any, and interest on, the
Securities having a principal amount equal to the aggregate
liquidation amount of such preferred securities held by such
holder.
Section 9.07. Compensation and Reimbursement.
* * *
(h) When Trustee incurs expenses or renders
services in connection with an Event of Default specified
in Section 8.01(4) or Section 8.01(5), such expenses
(including the fees and expenses of its counsel) and the
compensation for such services are intended to constitute
expenses of administration under any bankruptcy or
insolvency law or any law affecting creditors rights
generally.
In the event that the Trustee is also acting
as Paying Agent or Registrar hereunder, the rights and
protections afford to the Trustee hereunder shall also be
afforded to such paying Agent or Registrar.
Section 9.15. Other Matters Concerning the Trustee.
At the date of this Indenture, the Corporate Trust Office of the
Trustee is located at 450 West 33rd Street, 15th Floor, New York, NY 10001,
Attn: Corporate Trust Department. Anything in Section 6.02(1) to the contrary
notwithstanding, the office or agency of the Company in the Borough of
Manhattan, The City of New York, where Securities of any series may be
presented or surrendered for payment, where Securities of such 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 such series and
this Indenture may be served, shall initially be the corporate trust facility
of the Trustee in the Borough of Manhattan, The City of New York, which at the
date of this Indenture is located at Chase Institutional Trust Window, 1 Chase
Manhattan Plaza, 1B, New York, New York 10081.
Section 12.01. Supplemental Indentures.
The following clause shall be added to the end of paragraph (c):
or, in the case of Securities of a series issued to an Associate
Trust, the interests of the holders of the preferred securities
issued by such Associates Trust so long as such preferred
securities shall remain outstanding.
The following paragraph shall be added to the end of paragraph
(g):
; provided further that, in the case of the Securities of a
series issued to an Associates Trust, so long as any of the
related preferred securities of such Associates Trust remains
outstanding, no such amendment shall be made that
-5-
<PAGE> 7
adversely affects the holders of such preferred securities in any
material respect, and no termination of this Indenture shall
occur, without the prior consent of the holders of not less than
66 2/3% of the aggregate liquidation amount of such preferred
securities then outstanding unless and until the principal (and
premium, if any) of the Securities of such series and all accrued
and unpaid interest thereon have been paid in full; and provided
further that in the case of the Securities of a series issued to
an Associates Trust, so long as any of the related preferred
securities of such Associates Trust remain outstanding, no
amendment shall be made to Section 8.04 of this Indenture without
the prior consent of the holders of each such preferred security
then outstanding unless and until the principal (and premium, if
any) of the Securities of such series and all accrued and unpaid
interest thereon have been paid in full.
* * *
(h) Prior to entering into any supplemental indenture,
the Trustee shall be entitled to receive (i) an opinion of the
Company's corporate counsel addressed to the Trustee as to
matters the Trustee may reasonably request and (ii) an Officer's
Certificate of the Company attesting to such matters as the
Trustee may reasonably request.
Section 14.10. Applicable Law
THIS INDENTURE AND EACH SECURITY FOR ALL PURPOSES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 15.01. Subordination.
The following paragraph replaces the first paragraph of Section
15.01 of the Standard Provisions:
Section 15.01 Subordination. Anything in this Indenture or the
Securities of any series, or any Coupons appertaining thereto, to the contrary
notwithstanding, the Indebtedness evidenced by the Securities of all series and
any Coupons appertaining thereto shall be subordinate and junior in right of
payment in all respect to all Senior Indebtedness and Subordinated Indebtedness
of the Company, whether outstanding at the date of this Indenture or incurred
after the date of this Indenture. Such Indebtedness of the Company to which
the Securities and any Coupons appertaining thereto are subordinated and junior
is sometimes herein referred to as "Superior Indebtedness".
-6-
<PAGE> 8
IN WITNESS WHEREOF, ASSOCIATES FIRST CAPITAL CORPORATION, has
caused this Indenture to be signed in its corporate name by the Chairman of the
Board, any Vice Chairman, its President or any Vice President, and its
corporate seal to be affixed hereunto, and the same to be attested by the
signature of its Secretary or an Assistant Secretary; and THE CHASE MANHATTAN
BANK in evidence of its acceptance of the trust hereby created, has caused this
Indenture to be signed in its corporate name, and its corporate seal to be
affixed hereunto, and the same to be attested, as of the day and year first
above written.
ASSOCIATES FIRST CAPITAL
CORPORATION
[SEAL]
By:
------------------------------
Title:
Attest:
---------------------------------
Title:
THE CHASE MANHATTAN BANK,
as Trustee
[SEAL]
By:
------------------------------
Title:
Attest:
---------------------------------
Title:
-7-
<PAGE> 1
EXHIBIT 4.17
[THE FOLLOWING EXHIBIT 4.17 IS THE FORM OF AMENDED AND RESTATED TRUST AGREEMENT
TO BE USED BY EACH OF ASSOCIATES FIRST CAPITAL TRUST I, ASSOCIATES FIRST
CAPITAL TRUST II AND ASSOCIATES FIRST CAPITAL TRUST III.]
FORM OF AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
ASSOCIATES FIRST CAPITAL CORPORATION, AS DEPOSITOR,
THE CHASE MANHATTAN BANK,
AS PROPERTY TRUSTEE,
CHASE MANHATTAN BANK DELAWARE,
AS DELAWARE TRUSTEE
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
DATED AS OF ________, 1998
ASSOCIATES FIRST CAPITAL TRUST __
<PAGE> 2
Certain Sections of this Trust Agreement Relating
to Section 310 through 318 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Trust Agreement
Act Section Section
- ---------------- -----------------
<S> <C>
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.7
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.7
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.9
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7(a)(ii)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.8
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.13
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.13
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.7
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.7
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.7
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.14(a)
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.14(c)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.14(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.8
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.15
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.16
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.16
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1, 8.16
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1(a), 8.3(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2, 10.8
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1, 8.3
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.14
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.7
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.9
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.9
- --------------
</TABLE>
Note: This reconciliation and tie sheet shall not, for any purpose, be
deemed to be a part of the Trust Agreement.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
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ARTICLE I.
DEFINED TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II.
ESTABLISHMENT OF THE TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.1. Name. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.2. Office of the Delaware Trustee; Principal Place of Business . . . . . . . . . . . . . . 9
Section 2.3. Initial Contribution of Trust Property; Organizational Expenses . . . . . . . . . . . . 9
Section 2.4. Issuance of the Preferred Securities . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.5. Issuance of the Common Securities; Subscription and Purchase of Debentures. . . . . . . 10
Section 2.6. Declaration of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.7. Authorization to Enter into Certain Transactions . . . . . . . . . . . . . . . . . . . 11
Section 2.8. Assets of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.9. Title to Trust Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE III.
PAYMENT ACCOUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 3.1. Payment Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE IV.
CERTAIN TERMS OF THE TRUST SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4.1. Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4.2. Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.3. Subordination of Common Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 4.4. Payment Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 4.5. Tax Returns and Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 4.6. Intentionally Omitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 4.7. Payments under Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE V.
TRUST SECURITIES CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 5.1. Initial Ownership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 5.2. The Trust Securities Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
</TABLE>
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<TABLE>
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Section 5.3. Execution and Delivery of Trust Securities Certificates . . . . . . . . . . . . . . . . 20
Section 5.4. Registration of Transfer and Exchange of Preferred Securities Certificates . . . . . . 21
Section 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates . . . . . . . . . . 22
Section 5.6. Persons Deemed Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 5.7. Access to List of Securityholders' Names and Addresses . . . . . . . . . . . . . . . . 22
Section 5.8. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 5.9. Appointment of Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 5.10. Ownership of Common Securities by Depositor . . . . . . . . . . . . . . . . . . . . . . 23
Section 5.11. Book-Entry Preferred Securities Certificates; Common Securities Certificate . . . . . . 23
Section 5.12. Notices to Clearing Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 5.13. Definitive Preferred Securities Certificates . . . . . . . . . . . . . . . . . . . . . 25
Section 5.14. Rights of Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE VI.
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 6.1. Limitations on Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 6.2. Notice of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 6.3. Meetings of Preferred Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 6.4. Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 6.5. Proxies, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 6.6. Securityholder Action by Written Consent . . . . . . . . . . . . . . . . . . . . . . . 29
Section 6.7. Record Date for Voting and Other Purposes . . . . . . . . . . . . . . . . . . . . . . . 29
Section 6.8. Acts of Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 6.9. Inspection of Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.1. Representations and Warranties of the Property Trustee and the Delaware Trustee . . . . 31
Section 7.2. Representations and Warranties of Depositor . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE VIII.
THE TRUSTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 8.1. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 8.2. Certain Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 8.3. Certain Rights of Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 8.4. Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . 37
Section 8.5. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 8.6. Compensation; Indemnity; Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 8.7. Corporate Property Trustee Required; Eligibility of Trustees . . . . . . . . . . . . . 38
Section 8.8. Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 8.9. Co-Trustees and Separate Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 8.10. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . 41
</TABLE>
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<TABLE>
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Section 8.11. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 8.12. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . 43
Section 8.13. Preferential Collection of Claims Against Depositor or Trust . . . . . . . . . . . . . 43
Section 8.14. Reports by the Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 8.15. Reports to the Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 8.16. Evidence of Compliance with Conditions Precedent . . . . . . . . . . . . . . . . . . . 44
Section 8.17. Number of Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 8.18. Delegation of Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE IX.
TERMINATION, LIQUIDATION AND MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 9.1. Dissolution Upon Expiration Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 9.2. Early Dissolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 9.3. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 9.4. Liquidation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of the Trust . . . . . . . . . . 47
ARTICLE X.
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 10.1. Limitation of Rights of Securityholders . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 10.2. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 10.3. Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 10.4. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 10.5. Payments Due on Non-Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 10.6. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 10.7. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 10.8. Reports, Notices and Demands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 10.9. Agreement Not to Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . 51
Section 10.11. Acceptance of Terms of Trust Agreement, Guarantee and Indenture . . . . . . . . . . . . . . 52
</TABLE>
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<PAGE> 6
AMENDED AND RESTATED TRUST AGREEMENT, dated as of
___________________, 1998, among (i) Associates First Capital Corporation, a
Delaware banking corporation (including any successors or assigns, the
"Depositor"), (ii) The Chase Manhattan Bank, a New York banking corporation, as
property trustee, (the "Property Trustee" and, in its separate corporate
capacity and not in its capacity as Property Trustee, the "Bank"), (iii) Chase
Manhattan Bank Delaware, a Delaware banking corporation, as Delaware trustee
(the "Delaware Trustee"), (iv) ________________________________, an individual,
and ___________________________, an individual, each of whose address is c/o
Associates First Capital Corporation, 250 East Carpenter Freeway, Irving, Texas
75062 (each an "Administrative Trustee" and collectively the "Administrative
Trustees") (the Property Trustee, the Delaware Trustee and the Administrative
Trustees referred to collectively as the "Trustees") and (v) the several
Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Depositor and the Trustees have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by entering into that certain Trust Agreement, dated as of September
3, 1998 (the "Original Trust Agreement"), and by the execution and filing with
the Secretary of State of the State of Delaware of the Certificate of Trust,
filed on September 3, 1998, attached as Exhibit A; and
WHEREAS, the Depositor and the Trustees desire to amend and
restate the Original Trust Agreement in its entirety as set forth herein to
provide for, among other things, (i) the issuance of the Common Securities by
the Trust to the Depositor, (ii) the issuance and sale of the Preferred
Securities by the Trust pursuant to the Underwriting Agreement and (iii) the
acquisition by the Trust from the Depositor of all of the right, title and
interest in the Debentures;
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Securityholders, hereby amends and
restates the Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I.
DEFINED TERMS
Section 1.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the
meanings assigned to them in this Article and include the plural as
well as the singular;
<PAGE> 7
2
(b) all other terms used herein that are defined in
the Trust Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein;
(c) unless the context otherwise requires, any
reference to an "Article" or a "Section" refers to an Article or a
Section, as the case may be, of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Trust Agreement as a whole
and not to any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Administrative Trustee" means each of and
, solely in such Person's capacity as Administrative Trustee of the Trust
created and continued hereunder and not in such Person's individual capacity,
or such Administrative Trustee's successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"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.
"Bank" has the meaning specified in the preamble to this
Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of such Person or of any substantial part of
its property 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 60 consecutive days; or
(b) the institution by such Person of proceedings to
be adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law, or the consent by it
to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee,
<PAGE> 8
3
sequestrator (or similar official) of such Person or of any
substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due and its
willingness to be adjudicated a bankrupt, or the taking of corporate
action by such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Book-Entry Preferred Securities Certificates" means a
beneficial interest in the Preferred Securities Certificates, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 5.11.
"Business Day" means a day other than (a) a Saturday or
Sunday, (b) a day on which banking institutions in The City of New York are
authorized or required by law to remain closed, or (c) a day on which the
Property Trustee's Corporate Trust Office or the corporate trust office of the
Indenture Trustee is closed for business.
"Certificate Depository Agreement" means the agreement among
the Trust, the Depositor and The Depository Trust Company, as the initial
Clearing Agency, dated as of the Closing Date, relating to the Trust Securities
Certificates, substantially in the form attached as Exhibit B, as the same may
be amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange Act of
1934, as amended. The Depository Trust Company will be the initial Clearing
Agency.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities
deposited with the Clearing Agency.
"Closing Date" has the meaning specified in the Underwriting
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this instrument
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at such
time.
"Common Security" means an undivided beneficial ownership
interest in the assets of the Trust, having a Liquidation Amount of $[ ] and
having the rights provided therefor in this Trust Agreement, including the
right to receive Distributions and a Liquidation Distribution as provided
herein.
<PAGE> 9
4
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit
C.
"Corporate Trust Office" means the principal office of the
Property Trustee.
"Debenture Redemption Date" means, with respect to any
Debentures to be redeemed under the Indenture, the date fixed for redemption
under the Indenture.
"Debentures" means the aggregate principal amount of the
Depositor's ___% Junior Subordinated Deferrable Interest Debentures, Series
___, issued pursuant to the Indenture.
"Definitive Preferred Securities Certificates" means either or
both (as the context requires) of (a) Preferred Securities Certificates issued
as Book- Entry Preferred Securities Certificate as provided in Section 5.11(a)
and (b) Preferred Securities Certificates issued in certificated, fully
registered form as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. Section 3801, et seq., as it may be amended from
time to time.
"Delaware Trustee" means the corporation identified as the
"Delaware Trustee" in the preamble to this Trust Agreement solely in its
capacity as Delaware Trustee of the Trust created and continued hereunder and
not in its individual capacity, or its successor in interest in such capacity,
or any successor trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this
Trust Agreement.
"Distribution Date" has the meaning specified in Section
4.1(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"Event of Default" means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of an Event of Default with respect to a
Debenture; or
(b) default by the Property Trustee in the payment of any
Distribution when it becomes due and payable, and continuation of
such default for a period of 30 days; or
(c) default by the Property Trustee in the payment of any
Redemption Price of any Trust Security when it becomes due and
payable; or
<PAGE> 10
5
(d) default in the performance, or breach, in any
material respect, of any covenant or warranty of the Trustees in this
Trust Agreement (other than a covenant or warranty a default in the
performance or breach of which is dealt with in clause (b) or (c)
above) and continuation of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to
the defaulting Trustee or Trustees by the Holders of at least 25% in
aggregate liquidation preference of the Outstanding Preferred
Securities a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect
to the Property Trustee and the failure by the Depositor to appoint a
successor Property Trustee within 60 days thereof.
"Expiration Date" has the meaning specified in Section 9.1.
"Guarantee" means the Guarantee Agreement executed and
delivered by the Depositor and The Chase Manhattan Bank, as guarantee trustee,
contemporaneously with the execution and delivery of this Trust Agreement, for
the benefit of the Holders of the Trust Securities, as amended from time to
time.
"Indenture" means the Junior Subordinated Debt Securities
Indenture, dated as of September 1, 1998, between the Depositor and the
Indenture Trustee, as amended or supplemented from time to time.
"Indenture Trustee" means The Chase Manhattan Bank, a New York
banking corporation, and any successor thereto.
"Lien" means any lien, pledge, charge, encumbrance, mortgage,
deed of trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of Debentures to be contemporaneously redeemed in accordance with the
Indenture, allocated to the Common Securities and the Preferred Securities
based upon the relative Liquidation Amounts of such classes and the proceeds of
which will be used to pay the Redemption Price of such Trust Securities, and
(b) with respect to a distribution of Debentures to Holders of Trust Securities
in connection with a dissolution or liquidation of the Trust, Debentures having
a principal amount equal to the Liquidation Amount of the Trust Securities of
the Holder to whom such Debentures are distributed.
"Liquidation Amount" means the stated amount of $[ ] per Trust
Security.
<PAGE> 11
6
"Liquidation Date" means the date on which Debentures are to
be distributed to Holders of Trust Securities in connection with a termination
and liquidation of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in
Section 9.4(d).
"Ministerial Action" means the taking of an action, such as
filing a form or making an election, or pursuing some other similar reasonable
measure that will have no adverse effect on the Trust, the Depositor or the
Holders of the Trust Securities and will involve no material cost.
"1940 Act" means the Investment Company Act of 1940, as
amended.
"Officers' Certificate" means a certificate signed by the
Chairman or a Vice Chairman of the Board, the President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Comptroller, an Assistant
Comptroller, the Secretary or an Assistant Secretary, of the Depositor, and
delivered to the appropriate Trustee. One of the officers signing an Officers'
Certificate given pursuant to Section 8.16 shall be the principal executive,
financial or accounting officer of the Depositor. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Trust Agreement shall include:
(a) a statement that each officer signing the
Officers' Certificate has read the covenant or condition and the
definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Trust, the Property Trustee or the Depositor, and who
shall be reasonably acceptable to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding", when used with respect to Preferred Securities,
means, as of the date of determination, all Preferred Securities theretofore
executed and delivered under this Trust Agreement, except:
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(a) Preferred Securities theretofore cancelled by the
Property Trustee or delivered to the Property Trustee for
cancellation;
(b) Preferred Securities for whose payment or
redemption money in the necessary amount has been theretofore
deposited with the Property Trustee or any Paying Agent for the
Holders of such Preferred Securities; provided that, if such Preferred
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Trust Agreement; and
(c) Preferred Securities which have been paid or in
exchange for or in lieu of which other Preferred Securities have been
executed and delivered pursuant to Sections 5.4, 5.5, 5.11 and 5.13;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Depositor, any Trustee or any Affiliate of
the Depositor or any Trustee shall be disregarded and deemed not to be
Outstanding, except that (a) in determining whether any Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Preferred Securities that such Trustee knows to
be so owned shall be so disregarded and (b) the foregoing shall not apply at
any time when all of the outstanding Preferred Securities are owned by the
Depositor, one or more of the Trustees and/or any such Affiliate. Preferred
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Administrative Trustees the pledgee's right so to act with respect to such
Preferred Securities and that the pledgee is not the Depositor or any Affiliate
of the Depositor.
"Owner" means each Person who is the beneficial owner of a
Book-Entry Preferred Securities Certificate as reflected in the records of the
Clearing Agency or, if a Clearing Agency Participant is not the Owner, then as
reflected in the records of a Person maintaining an account with such Clearing
Agency (directly or indirectly, in accordance with the rules of such Clearing
Agency).
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.9 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee with the Bank in its
trust department for the benefit of the Securityholders in which all amounts
paid in respect of the Debentures will be held and from which the Property
Trustee shall make payments to the Securityholders in accordance with Sections
4.1 and 4.2.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
<PAGE> 13
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"Preferred Security" means an undivided beneficial ownership
interest in the assets of the Trust, having a Liquidation Amount of $[ ] and
having the rights provided therefor in this Trust Agreement, including the
right to receive Distributions and a Liquidation Distribution as provided
herein.
"Preferred Securities Certificate" means a certificate
evidencing ownership of Preferred Securities, substantially in the form
attached as Exhibit D.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust Agreement
solely in its capacity as Property Trustee of the Trust heretofore created and
continued hereunder and not in its individual capacity, or its successor in
interest in such capacity, or any successor property trustee appointed as
herein provided.
"Redemption Date" means, with respect to any Trust Security to
be redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date and the stated maturity
of the Debentures shall be a Redemption Date for a Like Amount of Trust
Securities.
"Redemption Price" means, with respect to any Trust Security,
the Liquidation Amount of such Trust Security, plus accumulated but unpaid
Distributions to the Redemption Date, plus the related amount of the premium,
if any, paid by the Depositor upon the concurrent redemption of a Like Amount
of Debentures, allocated on a pro rata basis (based on Liquidation Amounts)
among the Trust Securities.
"Relevant Trustee" shall have the meaning specified in Section
8.10.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 5.4.
"Securityholder" or "Holder" means a Person in whose name a
Trust Security or Trust Securities is registered in the Securities Register;
any such Person being a beneficial owner within the meaning of the Delaware
Business Trust Act.
"Trust" means the Delaware business trust created and
continued hereby and identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented in accordance
with the applicable provisions hereof, including all exhibits hereto,
including, for all purposes of this Trust Agreement and any such modification,
amendment or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Trust Agreement and any such
modification, amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust
<PAGE> 14
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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.
"Trust Property" means (a) the Debentures, (b) any cash on
deposit in, or owing to, the Payment Account and (c) all proceeds and rights in
respect of the foregoing and any other property and assets for the time being
held or deemed to be held by the Property Trustee pursuant to the terms of this
Trust Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the
Delaware Trustee and the Administrative Trustees.
"Underwriting Agreement" means the Underwriting Agreement,
dated as of __________, 1998, among the Trust, the Depositor and the
underwriters named therein.
ARTICLE II.
ESTABLISHMENT OF THE TRUST
Section 2.1. Name.
The Trust continued hereby shall be known as "Associates First
Capital Trust __," as such name may be modified from time to time by the
Administrative Trustees following written notice to the Holders of Trust
Securities and the other Trustees, in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued.
Section 2.2. Office of the Delaware Trustee; Principal
Place of Business.
The address of the Delaware Trustee in the State of Delaware
is 1201 Market Street, Wilmington, Delaware 19801, Attention: Corporate Trust
Administration, or such other address in the State of Delaware as the Delaware
Trustee may designate by written notice to the Securityholders and the
Depositor. The principal executive office of the Trust is c/o Associates First
Capital Corporation, 250 Carpenter Freeway, Irving, Texas 75062.
Section 2.3. Initial Contribution of Trust Property;
Organizational Expenses.
The Property Trustee acknowledges receipt in trust from the
Depositor in connection with the Original Trust Agreement of the sum of $10,
which constituted the initial Trust Property. The Depositor shall pay
organizational expenses of the Trust as they arise or
<PAGE> 15
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shall, upon request of any Trustee, promptly reimburse such Trustee for any
such expenses paid by such Trustee. The Depositor shall make no claim upon the
Trust Property for the payment of such expenses.
Section 2.4. Issuance of the Preferred Securities.
On _________________, 1998, the Depositor, on behalf of the
Trust and pursuant to the Original Trust Agreement, executed and delivered the
Underwriting Agreement. Contemporaneously with the execution and delivery of
this Trust Agreement, an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 5.2 and deliver to the Underwriters named in
the Underwriting Agreement Preferred Securities Certificates, registered in the
name of the nominee of the initial Clearing Agency,
________________________________ Preferred Securities having an aggregate
Liquidation Amount of $________, against receipt of such aggregate purchase
price of such Preferred Securities of $________, which amount the
Administrative Trustee shall promptly deliver to the Property Trustee. If
there is a Closing Date as a result of the exercise of an over-allotment option
pursuant to the Underwriting Agreement, an Administrative Trustee, on behalf of
the Trust, shall execute in accordance with Section 5.2 and deliver to the
Underwriters named in the Underwriting Agreement Preferred Securities
Certificates, registered in the name of the nominee of the initial Clearing
Agency, up to _________________ Preferred Securities having an aggregate
Liquidation Amount of up to $_______, against receipt of such aggregate
purchase price of such Preferred Securities of $_______, which amount such
Administrative Trustees shall promptly deliver to the Property Trustee in
accordance with instructions provided by such Underwriters, on the date
specified pursuant to the Underwriting Agreement.
Section 2.5. Issuance of the Common Securities;
Subscription and Purchase of Debentures.
Contemporaneously with the execution and delivery of this
Trust Agreement, an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 5.2 and deliver to the Depositor Common
Securities Certificates, registered in the name of the Depositor,
_______________ Common Securities having an aggregate Liquidation Amount of
$_______ against payment by the Depositor of such amount. Contemporaneously
therewith, an Administrative Trustee, on behalf of the Trust, shall subscribe
to and purchase from the Depositor Debentures, registered in the name of the
Trust and having an aggregate principal amount equal to $_______, and, in
satisfaction of the purchase price for such Debentures, the Property Trustee,
on behalf of the Trust, shall deliver to the Depositor the sum of $_______. If
there is a Closing Date as a result of the exercise of an over-allotment option
pursuant to the Underwriting Agreement, an Administrative Trustee, on behalf of
the Trust, shall execute in accordance with Section 5.2 and deliver to the
Depositor Common Securities Certificates, registered in the name of the
Depositor, up to ________ Common Securities having an aggregate Liquidation
Amount of up to $_______ against payment by the Depositor of such amount.
Contemporaneously therewith, an Administrative Trustee, on behalf of the Trust,
shall subscribe to and purchase from the Depositor Debentures, registered in
the name of the Trust and having an aggregate principal amount of up to
$_______, and, in satisfaction of the purchase price for such Debentures, the
Property Trustee, on behalf of the Trust, shall deliver
<PAGE> 16
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to the Depositor the amount received from one of the Administrative Trustees
pursuant to the last sentence of Section 2.4.
Section 2.6. Declaration of Trust.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Trust Securities and use the proceeds from such sale to acquire
the Debentures, and (b) to engage in those activities necessary, convenient or
incidental thereto. The Depositor hereby appoints the Trustees as trustees of
the Trust, to have all the rights, powers and duties to the extent set forth
herein, and the Trustees hereby accept such appointment. The Property Trustee
hereby declares that it will hold the Trust Property in trust upon and subject
to the conditions set forth herein for the benefit of the Trust and the
Securityholders. The Administrative Trustees shall have all rights, powers and
duties set forth herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities, of the Property Trustee or the Administrative
Trustees set forth herein, except as required by the Delaware Business Trust
Act. The Delaware Trustee shall be one of the Trustees of the Trust for the
sole and limited purpose of fulfilling the requirements of Section 3807(a) of
the Delaware Business Trust Act.
Section 2.7. Authorization to Enter into Certain
Transactions.
(a) The Trustees shall conduct the affairs of the
Trust in accordance with the terms of this Trust Agreement. Subject to the
limitations set forth in paragraph (b) of this Section and Article VIII, and in
accordance with the following provisions (i) and (ii), the Administrative
Trustees shall have the authority to enter into all transactions and agreements
determined by the Trustees to be appropriate in exercising the authority
granted to the Trustees under this Trust Agreement, and to perform all acts in
furtherance thereof, including without limitation, the following:
(i) As among the Trustees, each Administrative Trustee
shall have the power and authority to act on behalf of the Trust with
respect to the following matters:
(A) the issuance and sale of the Trust
Securities;
(B) to cause the Trust to enter into, and to
execute, deliver and perform on behalf of the Trust, the
Certificate Depository Agreement and such other agreements as
may be necessary or desirable in connection with the purposes
and function of the Trust;
(C) assisting in the registration of the
Preferred Securities under the Securities Act of 1933, as
amended, and under state securities or blue sky laws, and the
qualification of this Trust Agreement as a trust indenture
under the Trust Indenture Act;
<PAGE> 17
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(D) assisting in the listing of the Preferred
Securities upon such securities exchange or exchanges as shall
be determined by the Depositor and the registration of the
Preferred Securities under the Securities Exchange Act of
1934, as amended, and the preparation and filing of all
periodic and other reports and other documents pursuant to the
foregoing;
(E) the sending of notices (other than notices of
default) and other information regarding the Trust Securities
and the Debentures to the Securityholders in accordance with
this Trust Agreement;
(F) the appointment of a Paying Agent,
authenticating agent and Securities Registrar in accordance
with this Trust Agreement;
(G) registering transfer of the Trust Securities
in accordance with this Trust Agreement;
(H) to the extent provided in this Trust
Agreement, the winding up of the affairs of and liquidation of
the Trust and the preparation, execution and filing of the
certificate of cancellation with the Secretary of State of the
State of Delaware;
(I) unless otherwise required by the Trust
Indenture Act, to execute on behalf of the Trust (either
acting alone or together with any or all of the Administrative
Trustees) any documents that the Administrative Trustees have
the power to execute pursuant to this Trust Agreement; and
(J) the taking of any action incidental to the
foregoing as the Trustees may from time to time determine is
necessary or advisable to give effect to the terms of this
Trust Agreement for the benefit of the Securityholders
(without consideration of the effect of any such action on any
particular Securityholder).
(ii) As among the Trustees, the Property Trustee shall
have the power, duty and authority to act on behalf of the Trust with
respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any
other payments made in respect of the Debentures in the
Payment Account;
(D) the distribution of amounts owed to the
Securityholders in respect of the Trust Securities;
<PAGE> 18
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(E) the exercise of all of the rights, powers and
privileges of a holder of the Debentures;
(F) the sending of notices of default and other
information regarding the Trust Securities and the Debentures
to the Securityholders in accordance with this Trust
Agreement;
(G) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust
Agreement, the winding up of the affairs of and liquidation of
the Trust and the preparation, execution and filing of the
certificate of cancellation with the Secretary of State of the
State of Delaware;
(I) after an Event of Default the taking of any
action incidental to the foregoing as the Property Trustee may
from time to time determine is necessary or advisable to give
effect to the terms of this Trust Agreement and protect and
conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of any
such action on any particular Securityholder);
(J) registering transfers of the Trust Securities
in accordance with this Trust Agreement;
(K) to engage in such Ministerial Activities as
shall be necessary, appropriate, convenient or incidental to
effect the repayment of the Preferred Securities and the
Common Securities to the extent the Debentures mature or are
redeemed; and
(L) except as otherwise provided in this Section
2.7(a)(ii), the Property Trustee shall have none of the
duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect,
the Trust (or the Trustees acting on behalf of the Trust) shall not undertake
any business, activities or transaction except as expressly provided herein or
contemplated hereby. In particular, the Trustees shall not cause the Trust to
(i) acquire any investments or engage in any activities not authorized by this
Trust Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge,
set-off or otherwise dispose of any of the Trust Property or interests therein,
including to Securityholders, except as expressly provided herein, (iii) take
any action that would cause the Trust to fail or cease to qualify as a "grantor
trust" for United States Federal income tax purposes, (iv) incur any
indebtedness for borrowed money or issue any other debt or (v) take or consent
to any action that would result in the placement of a Lien on any of the Trust
Property. The Administrative Trustees shall defend all claims and demands of
all Persons at
<PAGE> 19
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any time claiming any Lien on any of the Trust Property adverse to the interest
of the Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the
Preferred Securities, the Depositor shall have the right and responsibility to
assist the Trust with respect to, or effect on behalf of the Trust, the
following (and any actions taken by the Depositor in furtherance of the
following prior to the date of this Trust Agreement are hereby ratified and
confirmed in all respects):
(i) the preparation and filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration
statement on the appropriate form in relation to the Preferred
Securities, including any amendments thereto;
(ii) the determination of the States in which to take
appropriate action to qualify or register for sale all or part of the
Preferred Securities and the determination of any and all such acts,
other than actions which must be taken by or on behalf of the Trust,
and the advice to the Trustees of actions they must take on behalf of
the Trust, and the preparation for execution and filing of any
documents to be executed and filed by the Trust or on behalf of the
Trust, as the Depositor deems necessary or advisable in order to
comply with the applicable laws of any such States;
(iii) the preparation for filing by the Trust and
execution on behalf of the Trust of an application to the New York
Stock Exchange or any other national stock exchange or the Nasdaq
National Market for listing upon notice of issuance of any Preferred
Securities;
(iv) the preparation for filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration
statement on Form 8-A relating to the registration of the Preferred
Securities under Section 12(b) or 12(g) of the Exchange Act, including
any amendments thereto;
(v) the negotiation of the terms of, and the execution
and delivery of, the Underwriting Agreement providing for the sale of
the Preferred Securities; and
(vi) the taking of any other actions deemed by the
Depositor necessary or desirable to carry out any of the foregoing
activities.
(d) Notwithstanding anything herein to the contrary,
the Administrative Trustees are authorized and directed to conduct the affairs
of the Trust and to operate the Trust so that the Trust will not be deemed to
be an "investment company" required to be registered under the Investment
Company Act of 1940, as amended, or taxed as a corporation for United States
Federal income tax purposes and so that the Debentures will be treated as
indebtedness of the Depositor for United States Federal income tax purposes. In
this connection, the Depositor and the Administrative Trustees are authorized
to take any action, not inconsistent with applicable law, the Certificate of
Trust or this Trust Agreement, that each of the Depositor and the
Administrative Trustees determines in their discretion to be
<PAGE> 20
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necessary or desirable for such purposes, as long as such action does not
adversely affect in any material respect the interests of the holders of the
Preferred Securities.
Section 2.8. Assets of Trust.
The assets of the Trust shall consist of the Trust Property.
Section 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times
in the Property Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the Trust and the
Securityholders in accordance with this Trust Agreement.
ARTICLE III.
PAYMENT ACCOUNT
Section 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property
Trustee shall establish the Payment Account. The Property Trustee and any
agent of the Property Trustee shall have exclusive control and sole right of
withdrawal with respect to the Payment Account for the purpose of making
deposits in and withdrawals from the Payment Account in accordance with this
Trust Agreement. All monies and other property deposited or held from time to
time in the Payment Account shall be held by the Property Trustee in the
Payment Account for the exclusive benefit of the Securityholders and for
distribution as herein provided, including (and subject to) any priority of
payments provided for herein.
(b) The Property Trustee shall deposit in the Payment
Account, promptly upon receipt, all payments of principal of or interest on,
and any other payments or proceeds with respect to, the Debentures. Amounts
held in the Payment Account shall not be invested by the Property Trustee
pending distribution thereof.
ARTICLE IV.
CERTAIN TERMS OF THE TRUST SECURITIES
Section 4.1. Distributions.
(a) Distributions on the Trust Securities shall be
cumulative, and will accumulate whether or not there are funds of the Trust
available for the payment of Distributions. Distributions shall accrue from
_________________, and shall be payable quarterly in arrears on [ ], [
], [ ] and [ ] of each year, commencing on _________, 1998 except
as provided below. The Depositor has the right under the Indenture
<PAGE> 21
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to defer payments of interest by extending the interest payment period from
time to time on the Debentures for a period not extending, in the aggregate,
beyond the maturity date of the Debentures (each as "Extension Period").
During such Extension Period, no interest shall be due and payable on the
Debentures. As a consequence of such deferral, Distributions will also be
deferred. Despite such deferral, quarterly Distributions will continue to
accumulate, compounded quarterly during any such Extension Period (to the
extent permitted by applicable law). Payments of accrued Distributions will be
payable to Holders as they appear on the books and records of the Trust on the
first record date after the end of the Extension Period. Upon the termination
of any Extension Period and the payment of all amounts then due, the Depositor
may commence a new Extension Period; provided that such Extension Period
together with all such previous and further extensions thereof may not exceed
beyond the maturity date of the Debentures. If any date on which a
Distribution is otherwise payable on the Trust Securities is not a Business
Day, then the payment of such Distribution shall be made on the next succeeding
day that is a Business Day (and without any interest or other payment in
respect of any such delay) except that, if such Business Day is in the next
succeeding calendar year, payment of such Distribution shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date (each date on which distributions are payable in
accordance with this Section 4.1(a), a "Distribution Date").
(b) The Trust Securities represent undivided
beneficial ownership interests in the Trust Property, and, as a practical
matter, the Distributions on the Trust Securities shall be payable at a rate of
____% per annum (the "Coupon Rate") of the Liquidation Amount of the Trust
Securities. Distributions in arrears for more than one quarter will
accumulate and compound at the Coupon Rate. The term "Distributions" as used
in this Trust Agreement includes such cash distributions and any such
accumulated amounts that are payable unless otherwise stated. A Distribution
is payable only to the extent that payments are made in respect of the
Debentures held by the Property Trustee and to the extent the Property Trustee
has funds available therefor. The amount of Distributions payable for any full
period shall be computed on the basis of a 360-day year of twelve 30-day
months.
(c) Distributions on the Trust Securities shall be
made by the Property Trustee from the Payment Account and shall be payable on
each Distribution Date only to the extent that the Trust has funds then on hand
and available in the Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect
to a Distribution Date shall be payable to the Holders thereof as they appear
on the Securities Register for the Trust Securities on the relevant record
date, which shall be one Business Day prior to such Distribution Date;
provided, however, that in the event that the Preferred Securities do not
remain in book-entry-only form, the relevant record date shall be the date 15
days prior to the relevant Distribution Date.
<PAGE> 22
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Section 4.2. Redemption.
(a) On each Debenture Redemption Date and on the
stated maturity of the Debentures, the Trust will be required to redeem a Like
Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the
Property Trustee by first-class mail, postage prepaid, mailed not less than 30
nor more than 60 days prior to the Redemption Date to each Holder of Trust
Securities to be redeemed, at such Holder's address appearing in the Security
Register. All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities
are to be redeemed, the identification and the total Liquidation
Amount of the particular Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price
will become due and payable upon each such Trust Security to be
redeemed and that distributions thereon will cease to accrue on and
after said date.
(c) The Trust Securities redeemed on each Redemption
Date shall be redeemed at the Redemption Price with the proceeds from the
contemporaneous redemption of Debentures. Redemptions of the Trust Securities
shall be made and the Redemption Price shall be payable on each Redemption Date
only to the extent that the Trust has funds then on hand and available in the
Payment Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of
redemption in respect of any Trust Securities, then, by 12:00 noon, New York
City time, on the Redemption Date, subject to Section 4.2(c), the Property
Trustee will, so long as the Trust Securities are in book-entry-only form,
irrevocably deposit with the Clearing Agency for the Trust Securities funds
sufficient to pay the applicable Redemption Price and will give such Clearing
Agency irrevocable instructions and authority to pay the Redemption Price to
the holders thereof. If the Trust Securities are no longer in book-entry-only
form, the Property Trustee, subject to Section 4.2(c), will irrevocably deposit
with the Paying Agent funds sufficient to pay the applicable Redemption Price
and will give the Paying Agent irrevocable instructions and authority to pay
the Redemption Price to the Holders thereof upon surrender of their Trust
Securities Certificates. Notwithstanding the foregoing, Distributions payable
on or prior to the Redemption Date for any Trust Securities called for
redemption shall be payable to the Holders of such Trust Securities as they
appear on the Register for the Trust Securities on the relevant record dates
for the related Distribution Dates. If notice of redemption shall have been
given and funds deposited as required, then immediately prior to the close of
business
<PAGE> 23
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on the date of such deposit, all rights of Securityholders holding Trust
Securities so called for redemption will cease, except the right of such
Securityholders to receive the Redemption Price and any Distribution payable on
or prior to the Redemption Date, but without interest, and such Securities will
cease to be outstanding. In the event that any date on which any Redemption
Price is payable is not a Business Day, then payment of the Redemption Price
payable on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such delay),
except that, if such Business Day falls in the next calendar year, such payment
will be made on the immediately preceding Business Day, in each case, with the
same force and effect as if made on such date. In the event that payment of
the Redemption Price in respect of any Trust Securities called for redemption
is improperly withheld or refused and not paid either by the Trust or by the
Depositor pursuant to the Guarantee, Distributions on such Trust Securities
will continue to accrue, at the then applicable rate, from the Redemption Date
originally established by the Trust for such Trust Securities to the date such
Redemption Price is actually paid, in which case the actual payment date will
be the date fixed for redemption for purposes of calculating the Redemption
Price.
(e) Payment of the Redemption Price on the Trust
Securities shall be made to the recordholders thereof as they appear on the
Securities Register for the Trust Securities on the relevant record date, which
shall be one Business Day prior to the relevant Redemption Date; provided,
however, that in the event that the Preferred Securities do not remain in
book-entry-only form, the relevant record date shall be the date 15 days prior
to the relevant Redemption Date.
(f) If less than all the Outstanding Trust Securities
are to be redeemed on a Redemption Date, then the aggregate Liquidation Amount
of Trust Securities to be redeemed shall be allocated on a pro rata basis
(based on Liquidation Amounts) among the Common Securities and the Preferred
Securities. The particular Preferred Securities to be redeemed shall be
selected on a pro rata basis (based upon Liquidation Amounts) not more than 60
days prior to the Redemption Date by the Property Trustee from the Outstanding
Preferred Securities not previously called for redemption which may provide for
the selection for redemption of portions (equal to $[ ] or an integral multiple
of $[ ] in excess thereof) of the Liquidation Amount of Preferred Securities of
a denomination larger than $[__]. The Property Trustee shall promptly notify
the Security Registrar in writing of the Preferred Securities selected for
redemption and, in the case of any Preferred Securities selected for partial
redemption, the Liquidation Amount thereof to be redeemed. For all purposes of
this Trust Agreement, unless the context otherwise requires, all provisions
relating to the redemption of Preferred Securities shall relate, in the case of
any Preferred Securities redeemed or to be redeemed only in part, to the
portion of the Liquidation Amount of Preferred Securities that has been or is
to be redeemed.
Section 4.3. Subordination of Common Securities.
(a) Payment of Distributions on, and the Redemption
Price of, the Trust Securities, as applicable, shall be made, subject to
Section 4.2(f), pro rata among the Common Securities and the Preferred
Securities based on the Liquidation Amount of the
<PAGE> 24
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Trust Securities; provided, however, that if on any Distribution Date or
Redemption Date any Event of Default resulting from a Debenture Event of
Default shall have occurred and be continuing, no payment of any Distribution
on, or Redemption Price of, any Common Security, and no other payment on
account of the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions on all Outstanding Preferred Securities for all
Distribution periods terminating on or prior thereto, or in the case of payment
of the Redemption Price the full amount of such Redemption Price on all
Outstanding Preferred Securities, shall have been made or provided for, and all
funds immediately available to the Property Trustee shall first be applied to
the payment in full in cash of all Distributions on, or the Redemption Price
of, Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of
Default resulting from any Debenture Event of Default, the Holder of Common
Securities will be deemed to have waived any right to act with respect to any
such Event of Default under this Trust Agreement until the effect of all such
Events of Default with respect to the Preferred Securities have been cured,
waived or otherwise eliminated. Until any such Event of Default under this
Trust Agreement with respect to the Preferred Securities has been so cured,
waived or otherwise eliminated, the Property Trustee shall act solely on behalf
of the Holders of the Preferred Securities and not the Holder of the Common
Securities, and only the Holders of the Preferred Securities will have the
right to direct the Property Trustee to act on their behalf.
Section 4.4. Payment Procedures.
Payments of Distributions in respect of the Preferred
Securities shall be made by check mailed to the address of the Person entitled
thereto as such address shall appear on the Securities Register or, if the
Preferred Securities are held by a Clearing Agency, such Distributions shall be
made to the Clearing Agency in immediately available funds, which shall credit
the relevant Persons' accounts at such Clearing Agency on the applicable
distribution dates. Payments in respect of the Common Securities shall be made
in such manner as shall be mutually agreed between the Property Trustee and the
Common Securityholder.
Section 4.5. Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be
prepared), at the Depositor's expense, and file all United States Federal,
state and local tax and information returns and reports required to be filed by
or in respect of the Trust. In this regard, the Administrative Trustees shall
(a) prepare and file (or cause to be prepared and filed) the appropriate
Internal Revenue Service form required to be filed in respect of the Trust in
each taxable year of the Trust and (b) prepare and furnish (or cause to be
prepared and furnished) to each Securityholder the appropriate Internal Revenue
Service form required to be provided or the information required to be provided
on such form. The Administrative Trustees shall provide the Depositor and the
Property Trustee with a copy of all such returns and reports promptly after
such filing or furnishing. The Trustees shall comply with United States Federal
<PAGE> 25
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withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the Trust
Securities.
Section 4.6. Intentionally Omitted.
Section 4.7. Payments under Indenture.
Any amount payable hereunder to any Holder of Preferred
Securities (and any Owner with respect thereto) shall be reduced by the amount
of any corresponding payment such Holder (and Owner) has directly received
pursuant to Section __ of the Indenture.
ARTICLE V.
TRUST SECURITIES CERTIFICATES
Section 5.1. Initial Ownership.
Upon the creation of the Trust and the contribution by the
Depositor pursuant to Section 2.3 and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are outstanding,
the Depositor shall be the sole beneficial owner of the Trust.
Section 5.2. The Trust Securities Certificates.
The Preferred Securities Certificates shall be issued in
minimum denominations of $[ ] Liquidation Amount and integral multiples of $[ ]
in excess thereof, and the Common Securities Certificates shall be issued in
denominations of $[ ] Liquidation Amount and integral multiples of $[ ] in
excess thereof. The Trust Securities Certificates shall be executed on behalf
of the Trust by manual signature of at least one Administrative Trustee. Trust
Securities Certificates bearing the manual signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be validly issued and entitled to the benefits of
this Trust Agreement, notwithstanding that such individuals or any of them
shall have ceased to be so authorized prior to the delivery of such Trust
Securities Certificates or did not hold such offices at the date of delivery of
such Trust Securities Certificates. A transferee of a Trust Securities
Certificate shall become a Securityholder, and shall be entitled to the rights
and subject to the obligations of a Securityholder hereunder, upon due
registration of such Trust Securities Certificate in such transferee's name
pursuant to Sections 5.4, 5.11 and 5.13.
Section 5.3. Execution and Delivery of Trust Securities
Certificates.
At each Time of Delivery, the Administrative Trustees shall
cause Trust Securities Certificates, in an aggregate Liquidation Amount as
provided in Sections 2.4 and 2.5, to be executed on behalf of the Trust and
delivered to or upon the written order of the Depositor, signed by its Chairman
or a Vice Chairman of the Board, President or a Vice President, and by its
Treasurer, Assistant Treasurer, Comptroller, an Assistant Comptroller,
<PAGE> 26
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Secretary or an Assistant Secretary without further corporate action by the
Depositor, in authorized denominations.
Section 5.4. Registration of Transfer and Exchange of
Preferred Securities Certificates.
The Depositor shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 5.8, a register or registers for the
purpose of registering Trust Securities Certificates and transfers and
exchanges of Preferred Securities Certificates (the "Securities Register") in
which, the registrar designated by the Depositor (the "Securities Registrar"),
subject to such reasonable regulations as it may prescribe, shall provide for
the registration of Preferred Securities Certificates and Common Securities
Certificates (subject to Section 5.10 in the case of the Common Securities
Certificates) and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided. The Bank shall be the initial
Securities Registrar.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.8, the Administrative Trustees or any one of them shall execute and deliver,
in the name of the designated transferee or transferees, one or more new
Preferred Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount dated the date of execution by such Administrative
Trustee or Trustees.
The Securities Registrar shall not be required to register the
transfer of any Preferred Securities that have been called for redemption. At
the option of a Holder, Preferred Securities Certificates may be exchanged for
other Preferred Securities Certificates in authorized denominations of the same
class and of a like aggregate Liquidation Amount upon surrender of the
Preferred Securities Certificates to be exchanged at the office or agency
maintained pursuant to Section 5.8.
Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by a
written instrument of transfer in form satisfactory to the Property Trustee and
the Securities Registrar duly executed by the Holder or his attorney duly
authorized in writing. Each Preferred Securities Certificate surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Property Trustee in accordance with its customary practice.
No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but the Securities
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Preferred Securities Certificates.
<PAGE> 27
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Section 5.5. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates.
If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Trust shall execute and make available for delivery, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Trust Securities Certificate,
a new Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section, the Administrative Trustees or the Securities Registrar may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection therewith. Any duplicate Trust Securities
Certificate issued pursuant to this Section shall constitute conclusive
evidence of an undivided beneficial ownership interest in the assets of the
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Trust Securities Certificate shall be found at any time.
Section 5.6. Persons Deemed Securityholders.
The Administrative Trustees or the Securities Registrar shall
treat the Person in whose name any Trust Securities Certificate shall be
registered in the Securities Register as the owner of such Trust Securities
Certificate for the purpose of receiving distributions and for all other
purposes whatsoever, and neither the Trustees nor the Securities Registrar
shall be bound by any notice to the contrary.
Section 5.7. Access to List of Securityholders' Names and
Addresses.
Trust Securities Certificate, and each Owner shall be deemed
to have agreed not to hold the Depositor, the Property Trustee or the
Administrative Trustees accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was derived.
Section 5.8. Maintenance of Office or Agency.
The Administrative Trustees shall maintain an office or
offices or agency or agencies where Preferred Securities Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trustees in respect of the Trust Securities Certificates
may be served. The Administrative Trustees initially designate Associates
First Capital Corporation, 250 East Carpenter Freeway, Irving, Texas 75062,
Attn: Treasurer, as its principal corporate trust office for such purposes. The
Administrative Trustees shall give prompt written notice to the Depositor and
to the Securityholders of any change in the location of the Securities Register
or any such office or agency.
<PAGE> 28
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Section 5.9. Appointment of Paying Agent.
The Paying Agent shall make distributions to Securityholders
from the Payment Account and shall report the amounts of such distributions to
the Property Trustee and the Administrative Trustees. Any Paying Agent shall
have the revocable power to withdraw funds from the Payment Account for the
purpose of making the distributions referred to above. The Administrative
Trustees may revoke such power and remove the Paying Agent if such Trustees
determine in their sole discretion that the Paying Agent shall have failed to
perform its obligations under this Trust Agreement in any material respect. The
Paying Agent shall initially be the Bank, and any co-paying agent chosen by the
Bank, and acceptable to the Administrative Trustees and the Depositor. Any
Person acting as Paying Agent shall be permitted to resign as Paying Agent upon
30 days' written notice to the Administrative Trustees, the Property Trustee
and the Depositor. In the event that the Bank shall no longer be the Paying
Agent or a successor Paying Agent shall resign or its authority to act be
revoked, the Administrative Trustees shall appoint a successor that is
acceptable to the Property Trustee and the Depositor to act as Paying Agent
(which shall be a bank or trust company). The Administrative Trustees shall
cause such successor Paying Agent or any additional Paying Agent appointed by
the Administrative Trustees to execute and deliver to the Trustees an
instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such successor Paying Agent
or additional Paying Agent will hold all sums, if any, held by it for payment
to the Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Securityholders. The Paying Agent
shall return all unclaimed funds to the Property Trustee and upon removal of a
Paying Agent such Paying Agent shall also return all funds in its possession to
the Property Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein shall
apply to the Bank also in its role as Paying Agent, for so long as the Bank
shall act as Paying Agent and, to the extent applicable, to any other paying
agent appointed hereunder. Any reference in this Agreement to the Paying Agent
shall include any co-paying agent unless the context requires otherwise.
Section 5.10. Ownership of Common Securities by Depositor.
At each Time of Delivery, the Depositor shall acquire and
retain beneficial and record ownership of the Common Securities. To the fullest
extent permitted by law, other than transactions permitted by Section __ of the
Indenture, any attempted transfer of the Common Securities shall be void. The
Administrative Trustees shall cause each Common Securities Certificate issued
to the Depositor to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE" OTHER THAN IN ACCORDANCE WITH THE TRUST AGREEMENT (AS DEFINED
BELOW).
Section 5.11. Book-Entry Preferred Securities Certificates;
Common Securities Certificate.
(a) The Preferred Securities Certificates, upon
original issuance, will be issued in the form of a typewritten Preferred
Securities Certificate or Certificates representing Book-Entry Preferred
Securities Certificates, to be delivered to The Depository Trust
<PAGE> 29
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Company, the initial Clearing Agency, by, or on behalf of, the Trust. Such
Preferred Securities Certificate or Certificates shall initially be registered
on the Securities Register in the name of Cede & Co., the nominee of the
initial Clearing Agency, and no beneficial owner will receive a Definitive
Preferred Securities Certificate representing such beneficial owner's interest
in such Preferred Securities, except as provided in Section 5.13. Unless and
until Definitive Preferred Securities Certificates have been issued to
beneficial owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in
full force and effect;
(ii) the Securities Registrar and the Trustees shall be
entitled to deal with the Clearing Agency for all purposes of this
Trust Agreement relating to the Book-Entry Preferred Securities
Certificates (including the payment of the Liquidation Amount of and
Distributions on the Book-Entry Preferred Securities and the giving of
instructions or directions to Owners of Book-Entry Preferred
Securities) as the sole Holder of Book-Entry Preferred Securities and
shall have no obligations to the Owners thereof;
(iii) to the extent that the provisions of this Section
5.11 conflict with any other provisions of this Trust Agreement, the
provisions of this Section 5.11 shall control; and
(iv) the rights of the Owners of the Book-Entry
Preferred Securities Certificates shall be exercised only through the
Clearing Agency and shall be limited to those established by law and
agreements between such Owners and the Clearing Agency and/or the
Clearing Agency Participants. Pursuant to the Certificate Depository
Agreement, unless and until Definitive Preferred Securities
Certificates are issued pursuant to Section 5.13, the initial Clearing
Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments on the Preferred
Securities to such Clearing Agency Participants.
(b) A single Common Securities Certificate
representing the Common Securities shall be issued to the Depositor in the form
of a definitive Common Securities Certificate.
Section 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the
Owners is required under this Trust Agreement, unless and until Definitive
Preferred Securities Certificates shall have been issued to Owners pursuant to
Section 5.13, the Trustees shall give all such notices and communications
specified herein to be given to Owners to the Clearing Agency, and shall have
no obligations to the Owners.
<PAGE> 30
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Section 5.13. Definitive Preferred Securities Certificates.
If (a) the Depositor advises the Trustees in writing that the
Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to the Preferred Securities Certificates, and the
Depositor is unable to locate a qualified successor, (b) the Depositor at its
option advises the Trustees in writing that it elects to terminate the
book-entry system through the Clearing Agency or (c) after the occurrence of a
Debenture Event of Default, Owners of Preferred Securities Certificates
representing beneficial ownership interests aggregating at least a majority of
the Liquidation Amount advise the Property Trustee in writing that the
continuation of a book-entry system through the Clearing Agency is no longer in
the best interest of the Owners of Preferred Securities Certificates, then the
Property Trustee shall notify the Clearing Agency and the Clearing Agency shall
notify all Owners of Preferred Securities Certificates and the other Trustees
of the occurrence of any such event and of the availability of the Definitive
Preferred Securities Certificates to Owners of such class or classes, as
applicable, requesting the same. Upon surrender to the Property Trustee of
the typewritten Preferred Securities Certificate or Certificates representing
the Book Entry Preferred Securities Certificates by the Clearing Agency,
accompanied by registration instructions, the Administrative Trustees, or any
one of them, shall execute the Definitive Preferred Securities Certificates in
accordance with the instructions of the Clearing Agency. Neither the Securities
Registrar nor the Trustees shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying
on, such instructions. Upon the issuance of Definitive Preferred Securities
Certificates, the Trustees shall recognize the Holders of the Definitive
Preferred Securities Certificates as Securityholders. The Definitive Preferred
Securities Certificates shall be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the Administrative
Trustees, as evidenced by the execution thereof by the Administrative Trustees
or any one of them.
Section 5.14. Rights of Securityholders.
(a) The legal title to the Trust Property is vested
exclusively in the Property Trustee (in its capacity as such) in accordance
with Section 2.9, and the Securityholders shall not have any right or title
therein other than the undivided beneficial ownership interests in the assets
of the Trust conferred by their Trust Securities and they shall have no right
to call for any partition or division of property, profits or rights of the
Trust except as described below. The Trust Securities shall be personal
property giving only the rights specifically set forth therein and in this
Trust Agreement. By acceptance of a beneficial interest in the Trust
Securities, Holders agree to treat the Debentures as indebtedness for all
United States tax purposes. The Trust Securities shall have no preemptive or
similar rights and when issued and delivered to Securityholders against payment
of the purchase price therefor will be fully paid and nonassessable by the
Trust. The Holders of the Trust Securities, in their capacities as such, shall
be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
<PAGE> 31
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(b) For so long as any Preferred Securities remain
Outstanding, if, upon a Debenture Event of Default, the Indenture Trustee fails
or the holders of not less than 25% in aggregate principal amount of the
outstanding Debentures fail to declare the principal of all of the Debentures
to be immediately due and payable, the Holders of at least 25% in aggregate
Liquidation Amount of the Preferred Securities then Outstanding shall have such
right by a notice in writing to the Depositor and the Indenture Trustee; and
upon any such declaration such principal amount of and the accrued interest on
all of the Debentures shall become immediately due and payable, provided that
the payment of principal and interest on such Debentures shall remain
subordinated to the extent provided in the Indenture. At any time after such a
declaration of acceleration with respect to the Debentures has been made and
before a judgment or decree for payment of the money due has been obtained by
the Indenture Trustee as in the Indenture provided, the Holders of a majority
in Liquidation Amount of the Preferred Securities, by written notice to the
Property Trustee, the Depositor and the Indenture Trustee, may rescind and
annul such declaration and its consequences if:
(i) the Depositor has paid or deposited with the
Indenture Trustee a sum sufficient to pay
(A) all overdue installments of interest on all
of the Debentures,
(B) the principal of (and premium, if any, on)
any Debentures which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
borne by the Debentures, and
(C) all sums paid or advanced by the Indenture
Trustee under the Indenture and the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee
and the Property Trustee, their agents and counsel; and
(ii) all Events of Default with respect to the
Debentures, other than the non-payment of the principal of the
Debentures which has become due solely by such acceleration, have been
cured or waived as provided in Section 8.01 of the Indenture.
The Holders of a majority in aggregate Liquidation Amount of
the Preferred Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past default under the Indenture, except a default in the
payment of principal or interest (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Indenture Trustee)
or a default in respect of a covenant or provision which under the Indenture
cannot be modified or amended without the consent of the holder of each
outstanding Debenture. No such rescission shall affect any subsequent default
or impair any right consequent thereon. Upon receipt by the Property Trustee of
written notice declaring such an acceleration, or rescission and annulment
thereof, by Holders of the Preferred Securities all or part of which is
represented by Book-Entry Preferred Securities Certificates, a record date
shall be established for determining Holders of Outstanding Preferred
Securities entitled to join in such notice, which record date shall be at the
close of business on the day the Property Trustee receives
<PAGE> 32
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such notice. The Holders on such record date, or their duly designated proxies,
and only such Persons, shall be entitled to join in such notice, whether or not
such Holders remain Holders after such record date; provided, that, unless such
declaration of acceleration, or rescission and annulment, as the case may be,
shall have become effective by virtue of the requisite percentage having joined
in such notice prior to the day which is 90 days after such record date, such
notice of declaration of acceleration, or rescission and annulment, as the case
may be, shall automatically and without further action by any Holder be
canceled and of no further effect. Nothing in this paragraph shall prevent a
Holder, or a proxy of a Holder, from giving, after expiration of such 90-day
period, a new written notice of declaration of acceleration, or rescission and
annulment thereof, as the case may be, that is identical to a written notice
which has been canceled pursuant to the proviso to the preceding sentence, in
which event a new record date shall be established pursuant to the provisions
of this Section 5.14(c).
(c) For so long as any Preferred Securities remain
Outstanding, to the fullest extent permitted by law and subject to the terms of
this Trust Agreement and the Indenture, upon a Debenture Event of Default
specified in Section 8.01(1) or 8.01(2) of the Indenture, any Holder of
Preferred Securities shall have the right to institute a proceeding directly
against the Depositor, pursuant to the Indenture, for enforcement of payment to
such Holder of the principal amount of or interest on Debentures having a
principal amount equal to the Liquidation Amount of the Preferred Securities of
such Holder (a "Direct Action"). In connection with any such Direct Action,
the Holder of the Common Securities will be subrogated to the rights of any
Holder of the Preferred Securities to the extent of any payment made by the
Depositor to such Holder of Preferred Securities as a result of such Direct
Action. Except as set forth in Section 5.14(b) and (c), the Holders of
Preferred Securities shall have no right to exercise directly any right or
remedy available to the holders of, or in respect of, the Debentures.
ARTICLE VI.
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.1. Limitations on Voting Rights.
(a) Except as provided in this Section, in Sections
5.14, 8.10 and 10.2 and in the Indenture and as otherwise required by law, no
Holder of Preferred Securities shall have any right to vote or in any manner
otherwise control the administration, operation and management of the Trust or
the obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Trust Securities Certificates, be construed so as
to constitute the Securityholders from time to time as partners or members of
an association.
(b) So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee, or
executing any trust or power conferred on the Indenture Trustee with respect to
such Debentures, (ii) waive any past default which is waivable under Section
8.01 of the Indenture, (iii) exercise any right to rescind or annul a
<PAGE> 33
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declaration that the principal of all the Debentures shall be due and payable
or (iv) consent to any amendment, modification or termination of the Indenture
or the Debentures, where such consent shall be required, without, in each case,
obtaining the prior approval of the Holders of at least a majority in
Liquidation Amount of all Outstanding Preferred Securities, provided, however,
that where a consent under the Indenture would require the consent of each
Holder of Debentures affected thereby, no such consent shall be given by the
Property Trustee without the prior written consent of each Holder of Preferred
Securities. The Trustees shall not revoke any action previously authorized or
approved by a vote of the Holders of Preferred Securities, except by a
subsequent vote of the Holders of Preferred Securities. The Property Trustee
shall notify all Holders of the Preferred Securities of any notice of default
received from the Indenture Trustee with respect to the Debentures. In addition
to obtaining the foregoing approvals of the Holders of the Preferred
Securities, prior to taking any of the foregoing actions, the Trustees shall,
at the expense of the Depositor, obtain an Opinion of Counsel experienced in
such matters to the effect that the Trust will not be classified as an
association taxable as a corporation for United States Federal income tax
purposes on account of such action.
(c) If any proposed amendment to the Trust Agreement
provides for, or the Trustees otherwise propose to effect, (i) any action that
would adversely affect in any material respect the powers, preferences or
special rights of the Preferred Securities, whether by way of amendment to the
Trust Agreement or otherwise, or (ii) the dissolution, winding-up or
termination of the Trust, other than pursuant to the terms of this Trust
Agreement, then the Holders of Outstanding Preferred Securities as a class will
be entitled to vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of the Holders of at
least a majority in Liquidation Amount of the Outstanding Preferred Securities.
Notwithstanding any other provision of this Trust Agreement, no amendment to
this Trust Agreement may be made if, as a result of such amendment, the Trust
would be classified as an association taxable as a corporation for United
States Federal income tax purposes.
Section 6.2. Notice of Meetings.
Notice of all meetings of the Preferred Securityholders,
stating the time, place and purpose of the meeting, shall be given by the
Property Trustee pursuant to Section 10.8 to each Preferred Securityholder of
record, at his registered address, at least 15 days and not more than 90 days
before the meeting. At any such meeting, any business properly before the
meeting may be so considered whether or not stated in the notice of the
meeting. Any adjourned meeting may be held as adjourned without further notice.
Section 6.3. Meetings of Preferred Securityholders.
No annual meeting of Securityholders is required to be held.
The Administrative Trustees, however, shall call a meeting of Securityholders
to vote on any matter upon the written request of the Preferred Securityholders
of record of 25% in aggregate Liquidation Amount of the Preferred Securities
(based upon their Liquidation Amount) and the Administrative Trustees or the
Property Trustee may, at any time in their
<PAGE> 34
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discretion, call a meeting of Preferred Securityholders to vote on any matters
as to which Preferred Securityholders are entitled to vote.
Preferred Securityholders of record of 50% of the Outstanding
Preferred Securities (based upon their Liquidation Amount), present in person
or by proxy, shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by
the Preferred Securityholders of record present, in person or by proxy, holding
a majority of the Preferred Securities (based upon their Liquidation Amount)
held by the Preferred Securityholders of record present, either in person or by
proxy, at such meeting shall constitute the action of the Securityholders,
unless this Trust Agreement requires a greater number of affirmative votes.
Section 6.4. Voting Rights.
Securityholders shall be entitled to one vote for each $[ ] of
Liquidation Amount represented by their Trust Securities in respect of any
matter as to which such Securityholders are entitled to vote.
Section 6.5. Proxies, etc.
At any meeting of Securityholders, any Securityholder entitled
to vote thereat may vote by proxy, provided that no proxy shall be voted at any
meeting unless it shall have been placed on file with the Administrative
Trustees, or with such other officer or agent of the Trust as the
Administrative Trustees may direct, for verification prior to the time at which
such vote shall be taken. Pursuant to a resolution of the Property Trustee,
proxies may be solicited in the name of the Property Trustee or one or more
officers of the Property Trustee. Only Securityholders of record shall be
entitled to vote. When Trust Securities are held jointly by several persons,
any one of them may vote at any meeting in person or by proxy in respect of
such Trust Securities, but if more than one of them shall be present at such
meeting in person or by proxy, and such joint owners or their proxies so
present disagree as to any vote to be cast, such vote shall not be received in
respect of such Trust Securities. A proxy purporting to be executed by or on
behalf of a Securityholder shall be deemed valid unless challenged at or prior
to its exercise, and the burden of proving invalidity shall rest on the
challenger. No proxy shall be valid more than three years after its date of
execution.
Section 6.6. Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a meeting
may be taken without a meeting if Securityholders holding a majority of all
Outstanding Trust Securities (based upon their Liquidation Amount) entitled to
vote in respect of such action (or such larger proportion thereof as shall be
required by any express provision of this Trust Agreement) shall consent to the
action in writing.
Section 6.7. Record Date for Voting and Other Purposes.
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For the purposes of determining the Securityholders who are
entitled to notice of and to vote at any meeting or by written consent, or to
participate in any distribution on the Trust Securities in respect of which a
record date is not otherwise provided for in this Trust Agreement, or for the
purpose of any other action, the Administrative Trustees may from time to time
fix a date, not more than 90 days prior to the date of any meeting of
Securityholders or the payment of a distribution or other action, as the case
may be, as a record date for the determination of the identity of the
Securityholders of record for such purposes.
Section 6.8. Acts of Securityholders.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Trust Agreement
to be given, made or taken by Securityholders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such
Securityholders in person or by an agent duly appointed in writing; and, except
as otherwise expressly provided herein, such action shall become effective when
such instrument or instruments are delivered to an Administrative Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Trust Agreement and (subject to Section 8.1) conclusive in
favor of the Trustees, if made in the manner provided in this Section.
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 any Trustee receiving the same deems sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust Security shall
bind every future Securityholder of the same Trust Security and the
Securityholder of every Trust Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustees or the Trust in reliance
thereon, whether or not notation of such action is made upon such Trust
Security.
Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any particular Trust
Security may do so with regard to all or
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any part of the Liquidation Amount of such Trust Security or by one or more
duly appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such liquidation amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder
or Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
Section 6.9. Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the
Property Trustee, the records of the Trust shall be open to inspection by
Securityholders during normal business hours for any purpose reasonably related
to such Securityholder's interest as a Securityholder.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
Section 7.1. Representations and Warranties of the
Property Trustee and the Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally
on behalf of and as to itself, hereby represents and warrants for the benefit
of the Depositor and the Securityholders that:
(a) the Property Trustee is a New York banking
corporation duly organized, validly existing and in good standing
under the laws of the State of New York;
(b) the Property Trustee meets the applicable
eligibility requirements set forth in Section 8.7, has full corporate
power, authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all necessary
action to authorize the execution, delivery and performance by it of
this Trust Agreement;
(c) the Delaware Trustee is a Delaware banking
corporation duly organized, validly existing and in good standing in
the State of Delaware;
(d) the Delaware Trustee meets the applicable
eligibility requirements set forth in Section 8.7, has full corporate
power, authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all necessary
action to authorize the execution, delivery and performance by it of
this Trust Agreement;
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(e) this Trust Agreement has been duly authorized,
executed and delivered by the Property Trustee and the Delaware
Trustee and constitutes the valid and legally binding agreement of
each of the Property Trustee and the Delaware Trustee enforceable
against each of them in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(f) the execution, delivery and performance of this
Trust Agreement have been duly authorized by all necessary corporate
or other action on the part of the Property Trustee and the Delaware
Trustee and do not require any approval of stockholders of the
Property Trustee and the Delaware Trustee and such execution, delivery
and performance will not (i) violate the charter or by-laws of the
Property Trustee or the Delaware Trustee, (ii) violate any provision
of, or constitute, with or without notice or lapse of time, a default
under, or result in the creation or imposition of, any Lien on any
properties included in the Trust Property pursuant to the provisions
of, any indenture, mortgage, credit agreement, license or other
agreement or instrument to which the Property Trustee or the Delaware
Trustee is a party or by which it is bound, or (iii) violate any law,
governmental rule or regulation of the State of New York or the State
of Delaware, as the case may be, governing the corporate, banking,
trust or general powers of the Property Trustee or the Delaware
Trustee (as appropriate in context) or any order, judgment or decree
applicable to the Property Trustee or the Delaware Trustee;
(g) neither the authorization, execution or delivery
by the Property Trustee or the Delaware Trustee of this Trust
Agreement nor the consummation of any of the transactions by the
Property Trustee or the Delaware Trustee (as appropriate in context)
contemplated herein or therein requires the consent or approval of,
the giving of notice to, the registration with or the taking of any
other action with respect to any governmental authority or agency
under any existing Federal law governing the banking, trust or general
powers of the Property Trustee or the Delaware Trustee, as the case
may be, under the laws of the State of New York or the State of
Delaware; and
(h) there are no proceedings pending or, to the best
of each of the Property Trustee's and the Delaware Trustee's
knowledge, threatened against or affecting the Property Trustee or the
Delaware Trustee in any court or before any governmental authority,
agency or arbitration board or tribunal which, individually or in the
aggregate, would materially and adversely affect the Trust or would
question the right, power and authority of the Property Trustee or the
Delaware Trustee, as the case may be, to enter into or perform its
obligations as one of the Trustees under this Trust Agreement.
Section 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit
of the Securityholders that:
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(a) the Trust Securities Certificates issued at each
Time of Delivery on behalf of the Trust have been duly authorized and
will have been, duly and validly executed, issued and delivered by the
Trustees pursuant to the terms and provisions of, and in accordance
with the requirements of, this Trust Agreement, and the
Securityholders will be, as of each such date, entitled to the
benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental
charges payable by the Trust (or the Trustees on behalf of the Trust)
under the laws of the State of Delaware or any political subdivision
thereof in connection with the execution, delivery and performance by
the Property Trustee or the Delaware Trustee, as the case may be, of
this Trust Agreement.
ARTICLE VIII.
THE TRUSTEES
Section 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees
shall be as provided by this Trust Agreement and, in the case of the Property
Trustee, subject to the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Trust Agreement shall require the Trustees to expend or risk
their own funds or otherwise incur any financial liability in the performance
of any of their duties hereunder, or in the exercise of any of their rights or
powers, if they 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. Whether or not therein expressly so provided, every
provision of this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be subject to the
provisions of this Section. Nothing in this Trust Agreement shall be construed
to release the Property Trustee from liability for its own gross negligent
action, its own gross negligent failure to act, or its own willful misconduct.
To the extent that, at law or in equity, an Administrative Trustee has duties
(including fiduciary duties) and liabilities relating thereto to the Trust or
to the Securityholders, such Administrative Trustee shall not be liable to the
Trust or to any Securityholder for such Trustee's good faith reliance on the
provisions of this Trust Agreement. The provisions of this Trust Agreement, to
the extent that they restrict the duties and liabilities of the Administrative
Trustees otherwise existing at law or in equity, are agreed by the Depositor
and the Securityholders to replace such other duties and liabilities of the
Administrative Trustees.
(b) All payments made by the Property Trustee or a
Paying Agent in respect of the Trust Securities shall be made only from the
revenue and proceeds from the Trust Property and only to the extent that there
shall be sufficient revenue or proceeds from the Trust Property to enable the
Property Trustee or a Paying Agent to make payments in accordance with the
terms hereof. Each Securityholder, by its acceptance of a Trust Security,
agrees that it will look solely to the revenue and proceeds from the Trust
Property to the
<PAGE> 39
34
extent legally available for distribution to it as herein provided and that the
Trustees are not personally liable to it for any amount distributable in
respect of any Trust Security or for any other liability in respect of any
Trust Security. This Section 8.1(b) does not limit the liability of the
Trustees expressly set forth elsewhere in this Trust Agreement and, in the case
of the Property Trustee, in the Trust Indenture Act.
(c) No provision of this Trust Agreement shall be
construed to relieve the Property Trustee from liability for its own negligent
action or its own negligent failure to act, except that:
(i) the Property Trustee shall not be liable for any
error of judgment made in good faith by an authorized officer of the
Property Trustee, unless it shall be proved that the Property Trustee
was negligent in ascertaining the pertinent facts;
(ii) the Property 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 not less than a
majority in Liquidation Amount of the Trust Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to
the custody, safe keeping and physical preservation of the Debentures
and the Payment Account shall be to deal with such Property in a
similar manner as the Property Trustee deals with similar property for
its own account, subject to the protections and limitations on
liability afforded to the Property Trustee under this Trust Agreement
and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree
with the Depositor; and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Payment Account maintained by the Property Trustee pursuant to Section
3.1 and except to the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Trust Agreement, nor
shall the Property Trustee be liable for the default or misconduct of
the Administrative Trustees or the Depositor.
Section 8.2. Certain Notices.
Within five Business Days after the occurrence of any Event of
Default actually known to the Property Trustee, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.8, notice of
such Event of Default to the Securityholders, the Administrative Trustees and
the Depositor, unless such Event of Default shall have been cured or waived.
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Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the
Debentures pursuant to the Indenture, the Administrative Trustee shall
transmit, in the manner and to the extent provided in Section 10.8, notice of
such exercise to the Securityholders and the Property Trustee, unless such
exercise shall have been revoked.
Section 8.3. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be
protected in acting or refraining from acting in good faith upon any
resolution, Opinion of Counsel, certificate, written representation of
a Holder or transferee, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond, debenture, note, 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) if (i) in performing its duties under this Trust
Agreement the Property Trustee is required to decide between
alternative courses of action or (ii) in construing any of the
provisions of this Trust Agreement the Property Trustee finds the same
ambiguous or inconsistent with any other provisions contained herein
or (iii) the Property Trustee is unsure of the application of any
provision of this Trust Agreement, then, except as to any matter as to
which the Preferred Securityholders are entitled to vote under the
terms of this Trust Agreement, the Property Trustee shall deliver a
notice to the Depositor requesting written instructions of the
Depositor as to the course of action to be taken and the Property
Trustee shall take such action, or refrain from taking such action, as
the Property Trustee shall be instructed in writing to take, or to
refrain from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor
within ten Business Days after it has delivered such notice, or such
reasonably shorter period of time set forth in such notice (which to
the extent practicable shall not be less than two Business Days), it
may, but shall be under no duty to, take or refrain from taking such
action not inconsistent with this Trust Agreement as it shall deem
advisable and in the best interests of the Securityholders, in which
event the Property Trustee shall have no liability except for its own
bad faith, negligence or willful misconduct;
(c) any direction or act of the Depositor or the
Administrative Trustees contemplated by this Trust Agreement shall be
sufficiently evidenced by an Officers' Certificate;
(d) whenever in the administration of this Trust
Agreement, the Property Trustee shall deem it desirable that a matter
be established before undertaking, suffering or omitting any action
hereunder, the Property Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request
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and rely upon an Officers' Certificate which, upon receipt of such
request, shall be promptly delivered by the Depositor or the
Administrative Trustees;
(e) the Property Trustee shall have no duty to see to
any recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or reregistration
thereof;
(f) the Property Trustee may consult with counsel
(which counsel may be counsel to the Depositor or any of its
Affiliates, and may include any of its employees) and the advice of
such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon and in accordance with such advice,
such counsel may be counsel to the Depositor or any of its Affiliates,
and may include any of its employees; the Property Trustee shall have
the right at any time to seek instructions concerning the
administration of this Trust Agreement from any court of competent
jurisdiction;
(g) the Property Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any of the Securityholders
pursuant to this Trust Agreement, unless such Securityholders shall
have offered to the Property Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(h) the Property 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,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing
to do so by one or more Securityholders, but the Property Trustee may
make such further inquiry or investigation into such facts or matters
as it may see fit;
(i) the Property Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or
by or through its agents or attorneys, provided that the Property
Trustee shall be responsible for its own negligence or recklessness
with respect to selection of any agent or attorney appointed by it
hereunder;
(j) whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking
any other action hereunder the Property Trustee (i) may request
instructions from the Holders of the Trust Securities which
instructions may only be given by the Holders of the same proportion
in Liquidation Amount of the Trust Securities as would be entitled to
direct the Property Trustee under the terms of the Trust Securities in
respect of such remedy, right or action, (ii) may refrain from
enforcing such remedy or right or taking such other action until such
instructions are
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37
received, and (iii) shall be protected in acting in accordance with
such instructions; and
(k) except as otherwise expressly provided by this
Trust Agreement, the Property Trustee shall not be under any
obligation to take any action that is discretionary under the
provisions of this Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose
any duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in
any jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
Section 8.4. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Depositor, and the
Trustees do not assume any responsibility for their correctness. The Trustees
shall not be accountable for the use or application by the Depositor of the
proceeds of the Debentures.
Section 8.5. May Hold Securities.
Any Trustee or any other agent of any Trustee or the Trust, in
its individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 8.8 and 8.13 and except as provided in the
definition of the term "Outstanding" in Article I, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
Section 8.6. Compensation; Indemnity; Fees.
Pursuant to the Indenture, the Depositor, as borrower, agrees:
(a) to pay to the Trustees from time to time
reasonable compensation for all services rendered by them hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses,
disbursements and advances incurred or made by the Trustees in
accordance with any provision of this Trust Agreement (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
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(c) to the fullest extent permitted by applicable law,
to indemnify and hold harmless (i) each Trustee, (ii) any Affiliate of
any Trustee, (iii) any officer, director, shareholder, employee,
representative or agent of any Trustee, and (iv) any employee or agent
of the Trust or its Affiliates, (referred to herein as an "Indemnified
Person") from and against any loss, damage, liability, tax, penalty,
expense or claim of any kind or nature whatsoever incurred by such
Indemnified Person by reason of the creation, operation or termination
of the Trust or any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the
scope of authority conferred on such Indemnified Person by this Trust
Agreement, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of gross negligence or willful misconduct
with respect to such acts or omissions.
(d) to the fullest extent permitted by applicable law,
to advance expenses (including legal fees) incurred by an Indemnified
Person in defending any claim, demand, action, suit or proceeding
shall, from time to time, prior to the final disposition of such
claim, demand, action, suit or proceeding upon receipt by the
Depositor of (i) a written affirmation by or on behalf of the
Indemnified Person of its or his good faith belief that it or he has
met the standard of conduct set forth in this Section 8.6 and (ii) an
undertaking by or on behalf of the Indemnified Person to repay such
amount if it shall be determined that the Indemnified Person is not
entitled to be indemnified as authorized in the preceding subsection.
The provisions of this Section 8.6 shall survive the
termination of this Trust Agreement or the resignation or removal of any
Trustee.
No Trustee may claim any lien or charge on any Trust Property
as a result of any amount due pursuant to this Section 8.6.
Section 8.7. Corporate Property Trustee Required;
Eligibility of Trustees.
(a) There shall at all times be a Property Trustee
hereunder with respect to the Trust Securities. The Property Trustee 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 any 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 Property Trustee with
respect to the Trust Securities shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
(b) There shall at all times be one or more
Administrative Trustees hereunder with respect to the Trust Securities. Each
Administrative Trustee shall be either a
<PAGE> 44
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natural person who is at least 21 years of age or a legal entity that shall act
through one or more persons authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee
with respect to the Trust Securities. The Delaware Trustee shall either be (i)
a natural person who is at least 21 years of age and a resident of the State of
Delaware or (ii) a legal entity with its principal place of business in the
State of Delaware and that otherwise meets the requirements of applicable
Delaware law that shall act through one or more persons authorized to bind such
entity.
Section 8.8. Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Property Trustee
shall either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Trust Agreement. The Depositor and any Trustee may engage in or possess an
interest in other business ventures of any nature or description, independently
or with others, similar or dissimilar to the business of the Trust, and the
Trust and the Holders of Trust Securities shall have no rights by virtue of
this Trust Agreement in and to such independent ventures or the income or
profits derived therefrom, and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. Neither the Depositor, nor any Trustee, shall be obligated to present
any particular investment or other opportunity to the Trust even if such
opportunity is of a character that, if presented to the Trust, could be taken
by the Trust, and the Depositor or any Trustee shall have the right to take for
its own account (individually or as a partner or fiduciary) or to recommend to
others any such particular investment or other opportunity. Any Trustee may
engage or be interested in any financial or other transaction with the
Depositor or any Affiliate of the Depositor, or may act as depository for,
trustee or agent for, or act on any committee or body of holders of, securities
or other obligations of the Depositor or its Affiliates.
Section 8.9. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be
continuing, at any time or times, for the purpose of meeting the legal
requirements of the Trust Indenture Act or of any jurisdiction in which any
part of the Trust Property may at the time be located, the Depositor and the
Administrative Trustees, by agreed action of the majority of such Trustees,
shall have power to appoint, and upon the written request of the Administrative
Trustees, the Depositor shall for such purpose join with the Administrative
Trustees in the execution, delivery, and performance of all instruments and
agreements necessary or proper to appoint, one or more Persons approved by the
Property Trustee either to act as co-trustee jointly with the Property Trustee,
of all or any part of such Trust Property, or to the extent required by law to
act as separate trustee of any such property, in either case with such powers
as may be provided in the instrument of appointment, and to vest in such Person
or Persons in the capacity aforesaid, any property, title, right or power
deemed necessary or desirable, subject to the other provisions of this Section.
If the Depositor does not join in such appointment
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within 15 days after the receipt by it of a request so to do, or in case a
Debenture Event of Default has occurred and is continuing, the Property Trustee
alone shall have power to make such appointment. Any co-trustee or separate
trustee appointed pursuant to this Section shall either be (i) a natural person
who is at least 21 years of age and a resident of the United States or (ii) a
legal entity with its principal place of business in the United States that
shall act through one or more persons authorized to bind such entity.
Should any written instrument from the Depositor be required
by any co-trustee or separate trustee so appointed for more fully confirming to
such co-trustee or separate trustee such property, title, right, or power, any
and all such instruments shall, on request, be executed, acknowledged and
delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the
following terms, namely:
(a) The Trust Securities shall be executed and
delivered and all rights, powers, duties, and obligations hereunder in
respect of the custody of securities, cash and other personal property
held by, or required to be deposited or pledged with, the Trustees
specified hereunder, shall be exercised, solely by such Trustees and
not by such co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or imposed
upon and exercised or performed by the Property Trustee or by the
Property Trustee and such co-trustee or separate trustee jointly, as
shall be provided in the instrument appointing such co-trustee or
separate trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the
Property Trustee shall be incompetent or unqualified to perform such
act, in which event such rights, powers, duties and obligations shall
be exercised and performed by such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument
in writing executed by it, with the written concurrence of the
Depositor, may accept the resignation of or remove any co-trustee or
separate trustee appointed under this Section, and, in case a
Debenture Event of Default has occurred and is continuing, the
Property Trustee shall have power to accept the resignation of, or
remove, any such co-trustee or separate trustee without the
concurrence of the Depositor. Upon the written request of the Property
Trustee, the Depositor shall join with the Property Trustee in the
execution, delivery and performance of all instruments and agreements
necessary or proper to effectuate such resignation or removal. A
successor to any co-trustee or separate trustee so resigned or removed
may be appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall
be personally liable by reason of any act or omission of the Property
Trustee or any other trustee hereunder.
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(e) The Property Trustee shall not be liable by reason
of any act of a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property
Trustee shall be deemed to have been delivered to each such co-trustee
and separate trustee.
Section 8.10. Resignation and Removal; Appointment of
Successor.
No resignation or removal of any Trustee (the "Relevant
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 8.11.
Subject to the immediately preceding paragraph, the Relevant
Trustee may resign at any time by giving written notice thereof to the
Securityholders. If the instrument of acceptance by the successor Trustee
required by Section 8.11 shall not have been delivered to the Relevant Trustee
within 30 days after the giving of such notice of resignation, the Relevant
Trustee may petition (pursuant to the Indenture, at the expense of the
Depositor), any court of competent jurisdiction for the appointment of a
successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Common
Securityholder. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at such time by Act of the Holders of a majority in Liquidation
Amount of the Preferred Securities, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust). An Administrative Trustee may
be removed by the Common Securityholder at any time.
If any Trustee shall resign, be removed or become incapable of
acting as Trustee, or if a vacancy shall occur in the office of any Trustee for
any cause, at a time when no Debenture Event of Default shall have occurred and
be continuing, the Common Securityholder, by Act of the Common Securityholder
delivered to the retiring Trustee, shall promptly appoint a successor Trustee
or Trustees, and the retiring Trustee shall comply with the applicable
requirements of Section 8.11. If the Property Trustee or the Delaware Trustee
shall resign, be removed or become incapable of continuing to act as the
Property Trustee or the Delaware Trustee, as the case may be, at a time when a
Debenture Event of Default shall have occurred and be continuing, the Preferred
Securityholders, by Act of the Securityholders of a majority in Liquidation
Amount of the Preferred Securities then Outstanding delivered to the retiring
Relevant Trustee, shall promptly appoint a successor Relevant Trustee or
Trustees, and such successor Trustee shall comply with the applicable
requirements of Section 8.11.
If an Administrative Trustee shall resign, be removed or
become incapable of acting as Administrative Trustee, at a time when a
Debenture Event of Default shall have occurred and be continuing, the Common
Securityholder by Act of the Common Securityholder delivered to the
Administrative Trustee shall promptly appoint a successor Administrative
Trustee or Administrative Trustees and such successor Administrative Trustee
<PAGE> 47
42
or Trustees shall comply with the applicable requirements of Section 8.11. If
no successor Relevant Trustee shall have been so appointed by the Common
Securityholder or the Preferred Securityholders and accepted appointment in the
manner required by Section 8.11, any Securityholder who has been a
Securityholder of Trust Securities 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 Relevant Trustee.
The Property Trustee shall give notice of each resignation and
each removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 10.8 and shall give notice to
the Depositor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
Notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event any Administrative Trustee or a Delaware Trustee
who is a natural person dies or becomes, in the opinion of the Depositor,
incompetent or incapacitated, the vacancy created by such death, incompetence
or incapacity may be filled by (a) the unanimous act of remaining
Administrative Trustees if there are at least two of them or (b) otherwise by
the Depositor (with the successor in each case being a Person who satisfies the
eligibility requirement for Administrative Trustees or Delaware Trustee, as the
case may be, set forth in Section 8.7).
Section 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Relevant
Trustee, the retiring Relevant Trustee and each successor Relevant Trustee with
respect to the Trust Securities shall execute and deliver an amendment hereto
wherein each successor Relevant Trustee shall accept such appointment and which
(a) shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Relevant Trustee all
the rights, powers, trusts and duties of the retiring Relevant Trustee with
respect to the Trust Securities and the Trust and (b) shall add to or change
any of the provisions of this Trust Agreement as shall be necessary to provide
for or facilitate the administration of the Trust by more than one Relevant
Trustee, it being understood that nothing herein or in such amendment shall
constitute such Relevant Trustees co-trustees and upon the execution and
delivery of such amendment the resignation or removal of the retiring Relevant
Trustee shall become effective to the extent provided therein and each such
successor Relevant Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Relevant Trustee; but, on request of the Trust or any successor Relevant
Trustee such retiring Relevant Trustee shall duly assign, transfer and deliver
to such successor Relevant Trustee all Trust Property, all proceeds thereof and
money held by such retiring Relevant Trustee hereunder with respect to the
Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Relevant Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case may
be.
<PAGE> 48
43
No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article.
Section 8.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Property Trustee or the
Delaware Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which such Relevant Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of such Relevant Trustee, shall be the successor of such Relevant 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.
Section 8.13. Preferential Collection of Claims Against
Depositor or Trust.
If and when the Property Trustee or the Delaware Trustee shall
be or become a creditor of the Depositor or the Trust (or any other obligor
upon the Debentures or the Trust Securities), the Property Trustee or the
Delaware Trustee, as the case may be, shall be subject to and shall take all
actions necessary in order to comply with the provisions of the Trust Indenture
Act regarding the collection of claims against the Depositor or Trust (or any
such other obligor).
Section 8.14. Reports by the Property Trustee
(a) The Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and its actions
under this Trust Agreement as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto. If required by
Section 313(a) of the Trust Indenture Act, the Property Trustee shall, within
sixty days after each May 15 following the date of this Trust Agreement deliver
to Securityholders a brief report, dated as of such May 15, which complies with
the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Property Trustee with each
national stock exchange, the Nasdaq National Market or such other interdealer
quotation system or self-regulatory organization upon which the Trust
Securities are listed or traded, with the Commission and with the Depositor.
Section 8.15. Reports to the Property Trustee.
The Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such documents, reports and
information as required by Section 314 of the Trust Indenture Act (if any) and
the compliance certificate required by Section 314(a) of the Trust Indenture
Act in the form, in the manner and at the times required by Section 314 of the
Trust Indenture Act.
<PAGE> 49
44
Section 8.16. Evidence of Compliance with Conditions
Precedent.
Each of the Depositor and the Administrative Trustees on
behalf of the Trust shall provide to the Property Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this Trust
Agreement that relate to any of the matters set forth in Section 314(c) of the
Trust Indenture Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) of the Trust Indenture Act shall be given
in the form of an Officers' Certificate.
Section 8.17. Number of Trustees.
(a) The number of Trustees shall be four, provided
that the Holder of all of the Common Securities by written instrument may
increase or decrease the number of Administrative Trustees. The Property
Trustee and the Delaware Trustee may be the same Person, subject to the
applicable eligibility requirements set forth herein.
(b) If a Trustee ceases to hold office for any reason
and the number of Administrative Trustees is not reduced pursuant to Section
8.17(a), or if the number of Trustees is increased pursuant to Section 8.17(a),
a vacancy shall occur. The vacancy shall be filled with a Trustee appointed in
accordance with Section 8.10.
(c) The death, resignation, retirement, removal,
bankruptcy, incompetence or incapacity to perform the duties of a Trustee shall
not operate to annul, dissolve or terminate the Trust. Whenever a vacancy in
the number of Administrative Trustees shall occur, until such vacancy is filled
by the appointment of an Administrative Trustee in accordance with Section
8.10, the Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the
duties imposed upon the Administrative Trustees by this Trust Agreement.
Section 8.18. Delegation of Power.
(a) Any Administrative Trustee may, by power of
attorney consistent with applicable law, delegate to any other natural person
over the age of 21 his or her power for the purpose of executing any documents
contemplated in Section 2.7(a), including any registration statement or
amendment thereto filed with the Commission, or making any other governmental
filing; and
(b) The Administrative Trustees shall have power to
delegate from time to time to such of their number or to the Depositor the
doing of such things and the execution of such instruments either in the name
of the Trust or the names of the Administrative Trustees or otherwise as the
Administrative Trustees may deem expedient, to the extent such delegation is
not prohibited by applicable law or contrary to the provisions of this Trust
Agreement, as set forth herein.
<PAGE> 50
45
ARTICLE IX.
TERMINATION, LIQUIDATION AND MERGER
Section 9.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Trust shall automatically
dissolve on December 31, 2048 (the "Expiration Date"). Thereafter, the Trust
Property shall be distributed in accordance with Section 9.4.
Section 9.2. Early Dissolution.
The first to occur of any of the following events is an "Early
Termination Event," the occurrence of which shall cause a dissolution of the
Trust:
(a) the occurrence of a Bankruptcy Event in respect
of, or the dissolution or liquidation of, the Depositor;
(b) the written direction to the Property Trustee from
the Depositor at any time (which direction is optional and wholly
within the discretion of the Depositor) to dissolve the Trust and
distribute Debentures to Securityholders in exchange for the Preferred
Securities;
(c) the redemption of all of the Preferred Securities;
and
(d) the entry of an order for dissolution of the Trust
by a court of competent jurisdiction.
Section 9.3. Termination.
The respective obligations and responsibilities of the
Trustees and the Trust created and continued hereby shall terminate upon the
latest to occur of the following: (a) the distribution by the Property Trustee
to Securityholders upon the liquidation of the Trust pursuant to Section 9.4,
or upon the redemption of all of the Trust Securities pursuant to Section 4.2,
of all amounts required to be distributed hereunder upon the final payment of
the Trust Securities; (b) the payment of any expenses owed by the Trust; and
(c) the discharge of all administrative duties of the Administrative Trustees,
including the performance of any tax reporting obligations with respect to the
Trust or the Securityholders.
Section 9.4. Liquidation.
(a) If an Early Termination Event specified in clause
(a), (b) or (d) of Section 9.2 occurs or upon the Expiration Date, the Trust
shall be liquidated by the Trustees as expeditiously as the Trustees determine
to be possible by distributing, after satisfaction of liabilities to creditors
of the Trust as provided by applicable law, to each Securityholder a Like
Amount of Debentures, subject to Section 9.4(d). Notice of liquidation shall be
given by
<PAGE> 51
46
the Property Trustee by first-class mail, postage prepaid mailed not later than
30 nor more than 60 days prior to the Liquidation Date to each Holder of Trust
Securities at such Holder's address appearing in the Securities Register. All
notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date,
the Trust Securities will no longer be deemed to be Outstanding and
any Trust Securities Certificates not surrendered for exchange will be
deemed to represent a Like Amount of Debentures; and
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust Securities Certificates
for Debentures, or if Section 9.4(d) applies receive a Liquidation
Distribution, as the Administrative Trustees or the Property Trustee
shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in
order to effect the liquidation of the Trust and distribution of the Debentures
to Securityholders, the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debentures in exchange for the
Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies,
after the Liquidation Date, (i) the Trust Securities will no longer be deemed
to be Outstanding, (ii) certificates representing a Like Amount of Debentures
will be issued to Holders of Trust Securities Certificates, upon surrender of
such certificates to the Administrative Trustees or their agent for exchange,
(iii) the Depositor shall use its reasonable efforts to have the Debentures
listed on the New York Stock Exchange or on such other exchange, interdealer
quotation system or self-regulatory organization as the Preferred Securities
are then listed, (iv) any Trust Securities Certificates not so surrendered for
exchange will be deemed to represent a Like Amount of Debentures, accruing
interest at the rate provided for in the Debentures from the last Distribution
Date on which a Distribution was made on such Trust Securities Certificates
until such certificates are so surrendered (and until such certificates are so
surrendered, no payments of interest or principal will be made to Holders of
Trust Securities Certificates with respect to such Debentures) and (v) all
rights of Securityholders holding Trust Securities will cease, except the right
of such Securityholders to receive Debentures upon surrender of Trust
Securities Certificates.
(d) In the event that, notwithstanding the other
provisions of this Section 9.4, whether because of an order for dissolution
entered by a court of competent jurisdiction or otherwise, distribution of the
Debentures in the manner provided herein is determined by the Property Trustee
not to be practical, the Trust Property shall be liquidated, and the Trust
shall be wound-up by the Property Trustee in such manner as the Property
Trustee determines. In such event, Securityholders will be entitled to receive
out of the assets of the
<PAGE> 52
47
Trust available for distribution to Securityholders, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, an amount
equal to the Liquidation Amount per Trust Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"). If, upon any such winding-up, the Liquidation
Distribution can be paid only in part because the Trust has insufficient assets
available to pay in full the aggregate Liquidation Distribution, then, subject
to the next succeeding sentence, the amounts payable by the Trust on the Trust
Securities shall be paid on a pro rata basis (based upon Liquidation Amounts).
The Holder of the Common Securities will be entitled to receive Liquidation
Distributions upon any such winding-up pro rata (determined as aforesaid) with
Holders of Preferred Securities, except that, if a Debenture Event of Default
has occurred and is continuing, the Preferred Securities shall have a priority
over the Common Securities.
Section 9.5. Mergers, Consolidations, Amalgamations or
Replacements of the Trust.
The Trust may not merge with or into, consolidate, convert
into, amalgamate, or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to any Person, except
pursuant to this Section 9.5 or Section 9.4. At the request of the Depositor,
with the consent of the Administrative Trustees and without the consent of the
Holders of the Preferred Securities, the Property Trustee or the Delaware
Trustee, the Trust may merge with or into, consolidate, convert into,
amalgamate, or be replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to a trust organized as such under the laws
of any State; provided, that (i) such successor entity either (a) expressly
assumes all of the obligations of the Trust with respect to the Preferred
Securities or (b) substitutes for the Preferred Securities other securities
having substantially the same terms as the Preferred Securities (the "Successor
Securities") so long as the Successor Securities rank the same as the Preferred
Securities rank in priority with respect to distributions and payments upon
liquidation, redemption and otherwise, (ii) the Depositor expressly appoints a
trustee of such successor entity possessing the same powers and duties as the
Property Trustee as the holder of the Debentures, (iii) the Successor
Securities are listed or traded, or any Successor Securities will be listed
upon notification of issuance, on any national securities exchange or other
organization on which the Preferred Securities are then listed or traded, if
any, (iv) such merger, consolidation, conversion, amalgamation, replacement,
conveyance, transfer or lease does not cause the Preferred Securities
(including any Successor Securities) to be downgraded by any nationally
recognized statistical rating organization, (v) such merger, consolidation,
conversion, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the holders of the
Preferred Securities (including any Successor Securities) in any material
respect, (vi) such successor entity has a purpose substantially identical to
that of the Trust, (vii) prior to such merger, consolidation, conversion,
amalgamation, replacement, conveyance, transfer or lease, the Depositor has
received an Opinion of Counsel to the effect that (a) such merger,
consolidation, conversion, amalgamation, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of the
holders of the Preferred Securities (including any Successor Securities) in any
material respect, and (b) following such merger, consolidation, conversion,
amalgamation, replacement, conveyance, transfer or lease, neither the Trust nor
such
<PAGE> 53
48
successor entity will be required to register as an investment company under
the 1940 Act and (viii) the Depositor owns all of the common securities of such
successor entity and guarantees the obligations of such successor entity under
the Successor Securities at least to the extent provided by the Guarantee.
Notwithstanding the foregoing, the Trust shall not, except with the consent of
Holders of 100% in Liquidation Amount of the Preferred Securities, consolidate,
amalgamate, merge with or into, convert into or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to any
other Person or permit any other entity to consolidate, amalgamate, merge with
or into, or replace it if such consolidation, conversion, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Trust or the
successor entity to be classified as other than a grantor trust for United
States Federal income tax purposes.
ARTICLE X.
MISCELLANEOUS PROVISIONS
Section 10.1. Limitation of Rights of Securityholders.
The death, incapacity, dissolution, bankruptcy or termination
of any Person having an interest, beneficial or otherwise, in Trust Securities
shall not operate to terminate this Trust Agreement nor dissolve, terminate or
annul the trust nor entitle the legal representatives or heirs of such Person
or any Securityholder for such person, to claim an accounting, take any action
or bring any proceeding in any court for a partition or winding-up of the
arrangements contemplated hereby, nor otherwise affect the rights, obligations
and liabilities of the parties hereto or any of them.
Section 10.2. Amendment.
(a) This Trust Agreement may be amended from time to
time by the Trustees and the Depositor, without the consent of any
Securityholders, (i) to cure any ambiguity, correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make
any other provisions with respect to matters or questions arising under this
Trust Agreement, which shall not be inconsistent with the other provisions of
this Trust Agreement, or (ii) to modify, eliminate or add to any provisions of
this Trust Agreement to such extent as shall be necessary to ensure that the
Trust will be classified for United States Federal income tax purposes as a
grantor trust at all times that any Trust Securities are outstanding or to
ensure that the Trust will not be required to register as an investment company
under the 1940 Act; provided, however, that in the case of clause (i), such
action shall not adversely affect in any material respect the interests of any
Securityholder, and any such amendments of this Trust Agreement shall become
effective when notice thereof is given to the Securityholders.
(b) Except as provided in Section 10.2(c) hereof, any
provision of this Trust Agreement may be amended by the Trustees and the
Depositor with (i) the consent of Trust Securityholders representing not less
than a majority (based upon Liquidation Amounts) of the
<PAGE> 54
49
Trust Securities then Outstanding and (ii) receipt by the Trustees of an
Opinion of Counsel to the effect that such amendment or the exercise of any
power granted to the Trustees in accordance with such amendment will not affect
the Trust's status as a grantor trust for United States Federal income tax
purposes or the Trust's exemption from status of an investment company under
the 1940 Act.
(c) In addition to and notwithstanding any other
provision in this Trust Agreement, without the consent of each affected
Securityholder, this Trust Agreement may not be amended to (i) change the
amount or timing of any Distribution on the Trust Securities or otherwise
adversely affect the amount of any Distribution required to be made in respect
of the Trust Securities as of a specified date or (ii) restrict the right of a
Securityholder to institute suit for the enforcement of any such payment on or
after such date; notwithstanding any other provision herein, without the
unanimous consent of the Securityholders, this paragraph (c) of this Section
10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any amendment to this
Trust Agreement which would cause the Trust to fail or cease to qualify for the
exemption from status of an investment company under the 1940 Act or fail or
cease to be classified as a grantor trust for United States Federal income tax
purposes.
(e) Notwithstanding anything in this Trust Agreement
to the contrary, without the consent of the Depositor, this Trust Agreement may
not be amended in a manner which imposes any additional obligation on the
Depositor.
(f) In the event that any amendment to this Trust
Agreement is made, the Administrative Trustees shall promptly provide to the
Depositor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware
Trustee shall be required to enter into any amendment to this Trust Agreement
which affects its own rights, duties or immunities under this Trust Agreement.
The Property Trustee shall be entitled to receive an Opinion of Counsel and an
Officers' Certificate stating that any amendment to this Trust Agreement is in
compliance with this Trust Agreement.
Section 10.3. Separability.
In case any provision in this Trust Agreement or in the Trust
Securities Certificates 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.
<PAGE> 55
50
Section 10.4. Governing Law.
This Trust Agreement and the rights and obligations of each of
the Securityholders, the Trust and the Trustees with respect to this Trust
Agreement and the Trust Securities shall be construed in accordance with and
governed by the laws of the State of Delaware (without regard to conflict of
law principles).
Section 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall
be a day that is not a Business Day, then such payment need not be made on such
date but may be made on the next succeeding day that is a Business Day (except
as otherwise provided in Sections 4.1(a) and 4.2(d)), with the same force and
effect as though made on the date fixed for such payment, and no interest shall
accrue thereon for the period after such date.
Section 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure to
the benefit of any successor to the Depositor, the Trust or the Relevant
Trustee, including any successor by operation of law. Except in connection with
transactions permitted under Article ________ of the Indenture and pursuant to
which the assignee agrees in writing to perform the Depositor's obligations
hereunder, the Depositor shall not assign its obligations hereunder.
Section 10.7. Headings.
The Article and Section headings are for convenience only and
shall not affect the construction of this Trust Agreement.
Section 10.8. Reports, Notices and Demands.
Any report, notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or
served to or upon any Securityholder or the Depositor may be given or served in
writing by deposit thereof, first-class postage prepaid, in the United States
mail, hand delivery or facsimile transmission, in each case, addressed, (a) in
the case of a Preferred Securityholder, to such Preferred Securityholder as
such Securityholder's name and address may appear on the Securities Register;
and (b) in the case of the Common Securityholder or the Depositor, to
Associates First Capital Corporation, 250 East Carpenter Freeway, Irving, Texas
75062, Attention: Treasurer, facsimile no.: [ ]. Such notice, demand
or other communication to or upon a Securityholder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or
served to or upon the Trust, the Property Trustee, the Delaware Trustee or the
Administrative Trustees shall be given in writing addressed (until another
address is published by the Trust) as follows: (a) with respect
<PAGE> 56
51
to the Property Trustee to [ ]
Attention: Corporate Trust Services Division; (b) with respect to the Delaware
Trustee, to [ ]; and (c) with respect to the
Administrative Trustees, to them at the address above for notices to the
Depositor, marked "Attention Administrative Trustees of Associates First
Capital Trust __." Such notice, demand or other communication to or upon the
Trust or the Property Trustee shall be deemed to have been sufficiently given
or made only upon actual receipt of the writing by the Trust or the Property
Trustee.
Section 10.9. Agreement Not to Petition.
Each of the Trustees and the Depositor agree for the benefit
of the Securityholders that, until at least one year and one day after the
Trust has been terminated in accordance with Article IX, they shall not file,
or join in the filing of, a petition against the Trust under any bankruptcy,
insolvency, reorganization or other similar law (including, without limitation,
the United States Bankruptcy Code) (collectively, "Bankruptcy Laws") or
otherwise join in the commencement of any proceeding against the Trust under
any Bankruptcy Law. In the event the Depositor takes action in violation of
this Section 10.9, the Property Trustee agrees, for the benefit of
Securityholders, that at the expense of the Depositor, it shall file an answer
with the bankruptcy court or otherwise properly contest the filing of such
petition by the Depositor against the Trust or the commencement of such action
and raise the defense that the Depositor has agreed in writing not to take such
action and should be stopped and precluded therefrom and such other defenses,
if any, as counsel for the Trustee or the Trust may assert. The provisions of
this Section 10.9 shall survive the termination of this Trust Agreement.
Section 10.10. Trust Indenture Act; Conflict with Trust
Indenture Act.
(a) This Trust Agreement is subject to the provisions
of the Trust Indenture Act that are required to be part of this Trust Agreement
and shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee
which is a trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or
conflicts with another provision hereof which is required to be included in
this Trust Agreement by any of the provisions of the Trust Indenture Act, such
required provision shall control. If any provision of this Trust Agreement
modifies or excludes any provision of the Trust Indenture Act which may be so
modified or excluded, the latter provision shall be deemed to apply to this
Trust Agreement as so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this
Trust Agreement shall not affect the nature of the Securities as equity
securities representing undivided beneficial ownership interests in the assets
of the Trust.
<PAGE> 57
52
Section 10.11. Acceptance of Terms of Trust Agreement,
Guarantee and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT
ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE
UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A
BENEFICIAL OWNERSHIP INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND
PROVISIONS OF THIS TRUST AGREEMENT AND AGREEMENT TO THE SUBORDINATION
PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE INDENTURE, AND SHALL
CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT
THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE
AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
ASSOCIATES FIRST CAPITAL
CORPORATION
By:
-------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as Property
Trustee
By:
-------------------------------------
Name:
Title:
CHASE MANHATTAN BANK DELAWARE, as
Delaware Trustee
By:
-------------------------------------
Name:
Title:
<PAGE> 58
53
-----------------------------------------------
[ ], as Administrative Trustee
-----------------------------------------------
[ ], as Administrative Trustee
<PAGE> 59
EXHIBIT A
CERTIFICATE OF TRUST
OF
ASSOCIATES FIRST CAPITAL TRUST __
This Certificate of Trust of Associates First Capital Trust __
(the "Trust"), dated ________, 1998, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del. C. Section 3801 et seq.).
1. Name. The name of the business trust being formed
hereby is Associates First Capital Trust __.
2. Delaware Trustee. The name and business address
of the trustee of the Trust with a principal place of business in the State of
Delaware are as follows:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
Attention: Corporate Trust Administration
3. Effective Date. This Certificate of Trust shall
be effective immediately upon filing with the Secretary of State of the State
of Delaware.
In Witness Whereof, the undersigned, being the trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
THE CHASE MANHATTAN BANK, as Trustee
By:
-------------------------------------
Name:
Title:
CHASE MANHATTAN BANK OF DELAWARE, as
Trustee
By:
-------------------------------------
Name:
Title:
<PAGE> 60
-----------------------------------------
[ ], as Trustee
<PAGE> 61
EXHIBIT B
The Depository Trust Company
55 Water Street, 49th Floor
New York, New York 10041-0099
Attention: John C. Drennan
General Counsel's Office
Re:
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters
relating to the issuance and deposit with The Depository Trust Company ("DTC")
of the [TITLE OF PREFERRED SECURITIES] (the "Preferred Securities"), of
Associates First Capital Trust __, a Delaware business trust (the "Issuer"),
formed pursuant to a Trust Agreement between Associates First Capital
Corporation ("AFCC") and The Chase Manhattan Bank, as Property Trustee, Chase
Manhattan Bank Delaware, as Delaware Trustee, and the Administrative Trustees
named therein. The payment of distributions on the Preferred Securities, and
payments due upon liquidation of Issuer or redemption of the Preferred
Securities, to the extent the Issuer has funds available for the payment
thereof are guaranteed by AFCC to the extent set forth in a Guarantee Agreement
dated ________, ____ by AFCC with respect to the Preferred Securities. AFCC and
the Issuer propose to sell the Preferred Securities to certain Underwriters
(the "Underwriters") pursuant to an Underwriting Agreement dated ________, 1998
by and among the Underwriters, the Issuer and AFCC, and the Underwriters wish
to take delivery of the Preferred Securities through DTC. [ ] is
acting as transfer agent and registrar with respect to the Preferred Securities
(then "Transfer Agent and Registrar").
To induce DTC to accept the Preferred Securities as eligible
for deposit at DTC, and to act in accordance with DTC's rules with respect to
the Preferred Securities, the Issuer, the Transfer Agent and Registrar and DTC
agree among each other as follows:
1. Prior to the closing of the sale of the Preferred
Securities to the Underwriters, which is expected to occur on or about
________, ____, there shall be deposited with or on behalf of DTC one or more
global certificates (individually and collectively, the "Global Certificate")
registered in the name of DTC's Preferred Securities nominee, Cede & Co.,
representing an aggregate of Preferred Securities and bearing the following
legend:
B-1
<PAGE> 62
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to Issuer or its agent for registration of transfer, exchange, or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
2. The Amended and Restated Trust Agreement of the
Issuer provides for the voting by holders of the Preferred Securities under
certain limited circumstances. The Issuer shall establish a record date for
such purposes and shall, to the extent possible, give DTC notice of such record
date not less than 15 calendar days in advance of such record date.
3. In the event of a stock split, conversion,
recapitalization, reorganization or any other similar transaction resulting in
the cancellation of all or any part of the Preferred Securities outstanding,
the Issuer or the Transfer Agent and Registrar shall send DTC a notice of such
event at least 5 business days prior to the effective date of such event.
4. In the event of distribution on, or an offering or
issuance of rights with respect to, the Preferred Securities outstanding, the
Issuer or the Transfer Agent and Registrar shall send DTC a notice specifying:
(a) the amount of and conditions, if any, applicable to the payment of any such
distribution or any such offering or issuance of rights; (b) any applicable
expiration or deadline date, or any date by which any action on the part of the
holders of Preferred Securities is required; and (c) the date any required
notice is to be mailed by or on behalf of the Issuer to holders of Preferred
Securities or published by or on behalf of the Issuer (whether by mail or
publication, the "Publication Date"). Such notice shall be sent to DTC by a
secure means (e.g., legible telecopy, registered or certified mail, overnight
delivery) in a timely manner designed to assure that such notice is in DTC's
possession no later than the close of business on the business day before the
Publication Date. The Issuer or the Transfer Agent and Registrar will forward
such notice either in a separate secure transmission for each CUSIP number or
in a secure transmission of multiple CUSIP numbers (if applicable) that
includes a manifest or list of each CUSIP number submitted in that
transmission. (The party sending such notice shall have a method to verify
subsequently the use of such means and the timeliness of such notice.) The
Publication Date shall be not less than 30 calendar days nor more than 60
calendar days prior to the payment of any such distribution or any such
offering or issuance of rights with respect to the Preferred Securities. After
establishing the amount of payment to be made on the Preferred Securities, the
Issuer or the Transfer Agent and Registrar will notify DTC's Dividend
Department of such payment 5 business days prior to payment date. Notices to
DTC's Dividend Department by telecopy shall be sent to (212) 709-1723. Such
notices by mail or by any other means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
B-2
<PAGE> 63
The Issuer or the Transfer Agent and Registrar shall confirm
DTC's receipt of such telecopy by telephoning the Dividend Department at (212)
709-1270.
5. In the event of a redemption by the Issuer of the
Preferred Securities, notice specifying the terms of the redemption and the
Publication Date of such notice shall be sent by the Issuer or the Transfer
Agent and Registrar to DTC not less than 30 calendar days prior to such event
by a secure means in the manner set forth in paragraph 4. Such redemption
notice shall be sent to DTC's Call Notification Department at (516) 227-4164 or
(516) 227-4190, and receipt of such notice shall be confirmed by telephoning
(516) 227-4070. Notice by mail or by any other means shall be sent to:
Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, New York 11530-4719
6. In the event of any invitation to tender the
Preferred Securities, notice specifying the terms of the tender and the
Publication Date of such notice shall be sent by the Issuer or the Transfer
Agent and Registrar to DTC by a secure means and in a timely manner as
described in paragraph 4. Notices to DTC pursuant to this paragraph and notices
of other corporate actions (including mandatory tenders, exchanges and capital
changes) shall be sent, unless notification to another department is expressly
provided for herein, by telecopy to DTC's Reorganization Department at (212)
709-1093 or (212) 709-1094 and receipt of such notice shall be confirmed by
telephoning (212) 709-6884, or by mail or any other means to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
7. All notices and payment advices sent to DTC shall
contain the CUSIP number or numbers of the Preferred Securities and the
accompanying designation of the Preferred Securities, which, as of the date of
this letter, is "[TITLE OF PREFERRED SECURITIES]."
8. Distribution payments or other cash payments with
respect to the Preferred Securities evidenced by the Global Certificate shall
be received by Cede & Co., as nominee of DTC, or its registered assigns in [
] funds on each payment date (or in accordance with existing
arrangements between the Issuer or the Transfer Agent and Registrar and DTC).
Such payments shall be made payable to the order of Cede & Co., and shall be
addressed as follows:
NDFS Redemption Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
B-3
<PAGE> 64
9. DTC may by prior written notice direct the Issuer
and the Transfer Agent and Registrar to use any other telecopy number or
address of DTC as the number or address to which notices or payments may be
sent.
10. In the event of a conversion, redemption, or any
other similar transaction (e.g., tender made and accepted in response to the
Issuer's or the Transfer Agent and Registrar's invitation) necessitating a
reduction in the aggregate number of Preferred Securities outstanding evidenced
by Global Certificates, DTC, in its discretion: (a) may request the Issuer or
the Transfer Agent and Registrar to issue and countersign a new Global
Certificate; or (b) may make an appropriate notation on the Global Certificate
indicating the date and amount of such reduction.
11. DTC may discontinue its services as a securities
depositary with respect to the Preferred Securities at any time by giving at
least 90 days' prior written notice to the Issuer and the Transfer Agent and
Registrar (at which time DTC will confirm with the Issuer or the Transfer Agent
and Registrar the aggregate number of Preferred Securities deposited with it)
and discharging its responsibilities with respect thereto under applicable law.
Under such circumstances, the Issuer may determine to make alternative
arrangements for book-entry settlement for the Preferred Securities, make
available one or more separate global certificates evidencing Preferred
Securities to any Participant having Preferred Securities credited to its DTC
account, or issue definitive Preferred Securities to the beneficial holders
thereof, and in any such case, DTC agrees to cooperate fully with the Issuer
and the Transfer Agent and Registrar, and to return the Global Certificate,
duly endorsed for transfer as directed by the Issuer or the Transfer Agent and
Registrar, together with any other documents of transfer reasonably requested
by the Issuer or the Transfer Agent and Registrar.
12. In the event that the Issuer determines that
beneficial owners of Preferred Securities shall be able to obtain definitive
Preferred Securities, the Issuer or the Transfer Agent and Registrar shall
notify DTC of the availability of certificates. In such event, the Issuer or
the Transfer Agent and Registrar shall issue, transfer and exchange
certificates in appropriate amounts, as required by DTC and others, and DTC
agrees to cooperate fully with the Issuer and the Transfer Agent and Registrar
and to return the Global Certificate, duly endorsed for transfer as directed by
the Issuer or the Transfer Agent and Registrar, together with any other
documents of transfer reasonably requested by the Issuer or the Transfer Agent
and Registrar.
B-4
<PAGE> 65
13. This letter may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument. Nothing herein shall be deemed to require the Transfer Agent and
Registrar to advance funds on behalf of Associates First Capital Trust __.
Very truly yours,
ASSOCIATES FIRST CAPITAL TRUST __
(As Issuer)
By:
-------------------------------------
Name:
Title:
[ ]
By:
-------------------------------------
Administrative Trustee
[ ]
(As Transfer Agent and Registrar)
By:
-------------------------------------
Name:
Title:
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By:
Authorized Officer
B-5
<PAGE> 66
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS
DESCRIBED IN THE TRUST AGREEMENT (AS DEFINED BELOW)
Certificate Number Number Of Common Securities
C-1
Certificate Evidencing Common Securities
of
ASSOCIATES FIRST CAPITAL TRUST __
___% Common Securities
(Liquidation Amount $[ ] Per Common Security)
Associates First Capital Trust __, a statutory business trust
created under the laws of the State of Delaware (the "Trust"), hereby certifies
that Associates First Capital Corporation (the "Holder") is the registered
owner of (___) common securities of the Trust representing undivided beneficial
ownership interests of the Trust and designated the ____% Common Securities
(liquidation amount $[ ] per Common Security) (the "Common Securities"). To
the extent set forth in Section 5.10 of the Trust Agreement (as defined below)
the Common Securities are not transferable and any attempted transfer hereof
shall be void. The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Common Securities are set forth in, and
this certificate and the Common Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended
and Restated Trust Agreement of the Trust dated as of ________, ____, as the
same may be amended from time to time (the "Trust Agreement") including the
designation of the terms of the Common Securities as set forth therein. The
Trust will furnish a copy of the Trust Agreement to the Holder without charge
upon written request to the Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder.
In Witness Whereof, one of the Administrative Trustees of the
Trust has executed this certificate this ____ day of ________, ____.
ASSOCIATES FIRST CAPITAL TRUST __
By:
-------------------------------------
Name:
Administrative Trustee
C-1
<PAGE> 67
EXHIBIT D
If the Preferred Security is to be a Global Certificate
Insert--This Preferred Security is a Global Certificate within the meaning of
the Trust Agreement hereinafter referred to and is registered in the name of
The Depository Trust Company (the "Depository") or a nominee of the Depository.
This Preferred Security is exchangeable for Preferred Securities registered in
the name of a person other than the Depository or its nominee only in the
limited circumstances described in the Trust Agreement and no transfer of this
Preferred Security (other than a transfer of this Preferred Security as a whole
by the Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository) may be
registered except in limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York) to
Associates First Capital Trust __ or its agent for registration of transfer,
exchange or payment, and any Preferred Security issued is registered in the
name of Cede & Co. or such other name as requested by an authorized
representative of The Depository Trust Company and any payment hereon is made
to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY A PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co.,
has an interest herein.
Certificate Number Number Of Preferred Securities
P-_____ Cusip No._____
Certificate Evidencing Preferred Securities
of
ASSOCIATES FIRST CAPITAL TRUST __
[DESIGNATION OF PREFERRED SECURITIES]
(Liquidation Amount $[ ] Per Preferred Security)
Associates First Capital Trust __, a statutory business trust
created under the laws of the State of Delaware (the "Trust"), hereby certifies
that ___________________ (the "Holder") is the registered owner of (___)
preferred securities of the Trust representing an undivided beneficial
ownership interest in the assets of the Trust and designated the [DESIGNATION
OF PREFERRED SECURITIES] (the "Preferred Securities"). The Preferred Securities
are transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer as provided in Section 5.4 of the Trust Agreement (as
defined below). The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Securities are set forth in,
and this certificate and the Preferred Securities represented hereby are issued
and shall in all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Trust dated as of ________, ____,
as the same may be amended from time to time (the "Trust
D-1
<PAGE> 68
Agreement") including the designation of the terms of Preferred Securities as
set forth therein. The Holder is entitled to the benefits of the Guarantee
Agreement entered into by Associates First Capital Corporation, a Delaware
corporation, and [ ], as guarantee trustee, dated as
of __________, 1998, as the same may be amended from time to time (the
"Guarantee"), to the extent provided therein. The Trust will furnish a copy of
the Trust Agreement and the Guarantee to the Holder without charge upon written
request to the Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder.
In Witness Whereof, one of the Administrative Trustees of the Trust
has executed this certificate this ___ day of __________, ____.
ASSOCIATES FIRST CAPITAL TRUST __
By:
-------------------------------------
Name:
Administrative Trustee
D-2
<PAGE> 69
ASSIGNMENT
For Value Received, the undersigned assigns and transfers this
Preferred Security to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:
----------------------------------------
Signature:
------------------------------------------------------------
(Sign exactly as your name appears on the other side of this
Preferred Security Certificate)
- --------------------------------------------------------------------------------
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
D-3
<PAGE> 1
EXHIBIT 4.19
[THE FOLLOWING EXHIBIT 4.19 IS THE FORM OF GUARANTEE TO BE USED BY EACH OF
ASSOCIATES FIRST CAPITAL TRUST I, ASSOCIATES FIRST CAPITAL TRUST II AND
ASSOCIATES FIRST CAPITAL TRUST III]
GUARANTEE AGREEMENT
between
ASSOCIATES FIRST CAPITAL CORPORATION
(as Guarantor)
and
THE CHASE MANHATTAN BANK
(as Trustee)
dated as of
_______________, 1998
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE I.
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II.
TRUST INDENTURE ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.1. Trust Indenture Act; Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.2. List of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.3. Reports by the Guarantee Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.4. Periodic Reports to the Guarantee Trustee . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.5. Evidence of Compliance with Conditions Precedent . . . . . . . . . . . . . . . . . . . . 5
Section 2.6. Events of Default; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.7. Event of Default; Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.8. Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE III.
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.1. Powers and Duties of the Guarantee Trustee . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.2. Certain Rights of Guarantee Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.3. Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV.
GUARANTEE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 4.1. Guarantee Trustee: Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 4.2. Appointment, Removal and Resignation of the Guarantee Trustee . . . . . . . . . . . . . 10
ARTICLE V.
GUARANTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.1. Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.2. Waiver of Notice and Demand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.3. Obligations Not Affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.4. Rights of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.5. Guarantee of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5.6. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5.7. Independent Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE VI.
COVENANTS AND SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 6.1. Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 6.2. Pari Passu Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
</TABLE>
-i-
<PAGE> 3
<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE VII.
TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7.1. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VIII.
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 8.1. Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 8.2. Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 8.3. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 8.4. Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 8.5. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 8.6. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
</TABLE>
-ii-
<PAGE> 4
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of __________, 1998,
is executed and delivered by ASSOCIATES FIRST CAPITAL CORPORATION, a
Delaware corporation (the "Guarantor") having its principal office at 250
East Carpenter Freeway, Irving, Texas 75062, and THE CHASE MANHATTAN BANK,
a New York corporation, as trustee (the "Guarantee Trustee"), for the
benefit of the Holders (as defined herein) from time to time of the
Preferred Securities (as defined herein) of Associates First Capital Trust
__, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust
Agreement (the "Trust Agreement"), dated as of ___________, 1998 among the
Issuer Trustees named therein, the Guarantor, as Depositor, and the
Holders from time to time of undivided beneficial ownership interests in
the assets of the Issuer, the Issuer is issuing up to $______ ______
aggregate liquidation preference of its [TITLE OF PREFERRED SECURITIES]
(liquidation preference $[ ] per preferred security) (the "Preferred
Securities") and $__________ aggregate liquidation preference of its
common securities (the "Common Securities" and, together with the
Preferred Securities, the "Securities") representing undivided beneficial
ownership interests in the assets of the Issuer and having the terms set
forth in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the
Issuer and the proceeds thereof, together with the proceeds from the
issuance of the Issuer's Common Securities (as defined below), will be
used to purchase the Debentures (as defined in the Trust Agreement) of the
Guarantor which will be deposited with The Chase Manhattan Bank, as
Property Trustee under the Trust Agreement, as trust assets; and
WHEREAS, as incentive for the Holders to purchase the
Securities, the Guarantor desires irrevocably and unconditionally to
agree, to the extent set forth herein, to pay to the Holders of the
Securities the Guarantee Payments (as defined herein) and to make certain
other payments on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each
Holder of Securities, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this Guarantee
Agreement for the benefit of the Holders from time to time of the
Securities.
ARTICLE I. DEFINITIONS
Section 1.1. Definitions.
As used in this Guarantee Agreement, the terms set forth
below shall, unless the context otherwise requires, have the following
meanings. Capitalized or otherwise defined terms used but not otherwise
defined herein shall have the meanings assigned to such terms in the Trust
Agreement as in effect on the date hereof.
<PAGE> 5
2
"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, provided, however,
that an Affiliate of the Guarantor shall not be deemed to include the
Issuer. 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.
"Common Securities" means the securities representing
common undivided beneficial ownership interests in the assets of the
Issuer.
"Event of Default" means a default by the Guarantor on
any of its payment or other obligations under this Guarantee Agreement;
provided, however, that, except with respect to a default in payment of
any Guarantee Payments, the Guarantor shall have received notice of
default and shall not have cured such default within 60 days after receipt
of such notice.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Securities, to the
extent not paid or made by or on behalf of the Issuer; (i) any accumulated
and unpaid Distributions (as defined in the Trust Agreement) required to
be paid on such Securities, to the extent the Issuer shall have funds on
hand available therefor at such time, (ii) the redemption price, including
all accumulated and unpaid Distributions to the date of redemption (the
"Redemption Price"), with respect to the Securities called for redemption
by the Issuer to the extent the Issuer shall have funds on hand available
therefor at such time, and (iii) upon a voluntary or involuntary
termination, winding-up or liquidation of the Issuer, unless Debentures
are distributed to the Holders, the lesser of (a) the aggregate of the
liquidation preference of $[ ] per Security plus accumulated and unpaid
Distributions on the Securities to the date of payment to the extent the
Issuer shall have funds on hand available to make such payment at such
time and (b) the amount of assets of the Issuer remaining available for
distribution to Holders in liquidation of the Issuer (in either case, the
"Liquidation Distribution").
"Guarantee Trustee" means The Chase Manhattan Bank, until
a Successor Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Guarantee Agreement and
thereafter means each such Successor Guarantee Trustee.
"Holder" means any holder, as registered on the books and
records of the Issuer, of any Securities; provided, however, that in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder,
"Holder" shall not include the Guarantor, the Guarantee Trustee, or any
Affiliate of the Guarantor or the Guarantee Trustee.
<PAGE> 6
3
"Indebtedness" means, with respect to a Person, (i) the
principal of and premium, if any, and interest, if any, on, (A)
indebtedness of such Person for money borrowed and (B) indebtedness
evidenced by securities, notes, debentures, bonds or other similar
instruments issued by such Person; (ii) all capital lease obligations of
such Person; (iii) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations of
such Person and all obligations of such Person under any conditional sale
or title retention agreement (but excluding trade accounts payable and
accrued liabilities in the ordinary course of business); (iv) all
obligations, contingent or otherwise, of such Person in respect of any
letters of credit, banker's acceptance, security purchase facilities or
similar credit transactions; (v) all obligations in respect of interest
rate swap, cap, floor, collar or other agreements, interest rate future or
option contacts, currency swap agreements, currency future or option
contracts and other similar agreements; and (vi) all obligations of the
type referred to in clauses (i) through (v) of others for the payment of
which such Person is responsible or liable as obligor, guarantor or
otherwise.
"Indenture" means the Junior Subordinated Indenture,
dated as of __________, 1998, between the Guarantor and The Chase
Manhattan Bank, as Indenture Trustee.
"Junior Subordinated Indebtedness" means all Indebtedness
of the Guarantor subordinate and junior to Subordinated Indebtedness and
Senior Indebtedness.
"List of Holders" has the meaning specified in Section
2.2(a).
"Majority in liquidation preference of the Preferred
Securities" means, except as provided by the Trust Indenture Act, a vote
by the Holder(s), voting separately as a class, of more than 50% of the
liquidation preference of all then outstanding Preferred Securities issued
by the Issuer.
"Officers' Certificate" means, with respect to any
Person, a certificate signed by the Chairman or a Vice Chairman of the
Board, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Comptroller, an Assistant Comptroller, the
Secretary or an Assistant Secretary of such Person, and delivered to the
Guarantee Trustee. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Guarantee
Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(c) a statement that each officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as
to whether or not such covenant or condition has been complied
with; and
<PAGE> 7
4
(d) a statement as to whether, in the opinion of each
officer, such condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other
entity of whatever nature.
"Responsible Officer" means, with respect to the
Guarantee Trustee, any Senior Vice President, any Vice President, any
Assistant Vice President, the Secretary, any Assistant Secretary, the
Treasurer, any Assistant Treasurer, any Trust Officer or Assistant Trust
Officer or any other officer of the Corporate Trust Department 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 that officer's knowledge of and familiarity with the particular
subject.
"Senior Indebtedness" means all Indebtedness of the
Guarantor, unless, in the instrument creating or evidencing the same or
pursuant to which the same is outstanding, it is provided that such
obligations are not superior in right of payment to Subordinated
Indebtedness or Junior Subordinated Indebtedness or to other Indebtedness
of the Guarantor which is pari passu with, or subordinated to,
Subordinated Indebtedness or Junior subordinated Indebtedness.
"Subordinated Indebtedness" means all Indebtedness of the
Guarantor which is subordinated and Junior in right of payment to Senior
Indebtedness, but does not include Junior Subordinated Indebtedness.
"Successor Guarantee Trustee" means a successor Guarantee
Trustee possessing the qualifications to act as Guarantee Trustee under
Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of
1939, as amended.
ARTICLE II. TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Guarantee Agreement and shall, to the extent applicable, be governed by
such provisions.
(b) If and to the extent that any provision of this
Guarantee Agreement limits, qualifies or conflicts with the duties imposed
by Sections 310 to 317, inclusive, of the Trust Indenture Act, such
imposed duties shall control.
<PAGE> 8
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Section 2.2. List of Holders.
(a) The Guarantor shall furnish or cause to be furnished
to the Guarantee Trustee (a) semiannually, on or before January 15 and
July 15 of each year, a list, in such form as the Guarantee Trustee may
reasonably require, of the names and addresses of the Holders ("List of
Holders") as of a date not more than 15 days prior to the delivery
thereof, and (b) at such other times as the Guarantee Trustee may request
in writing, within 30 days after the receipt by the Guarantor of any such
request, a List of Holders as of a date not more than 15 days prior to the
time such list is furnished, in each case to the extent such information
is in the possession or control of the Guarantor and is not identical to a
previously supplied list of Holders or has not otherwise been received by
the Guarantee Trustee in its capacity as such. The Guarantee Trustee may
destroy any List of Holders previously given to it on receipt of a new
List of Holders.
(b) The Guarantee Trustee shall comply with its
obligations under Section 311(a), Section 311(b) and Section 312(b) of the
Trust Indenture Act.
Section 2.3. Reports by the Guarantee Trustee.
Not later than July 15 of each year, commencing July 15,
199__, the Guarantee Trustee shall provide to the Holders such reports as
are required by Section 313 of the Trust Indenture Act, if any, in the
form and in the manner provided by Section 313 of the Trust Indenture Act.
The Guarantee Trustee shall also comply with the requirements of Section
313 (d) of the Trust Indenture Act.
Section 2.4. Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, the
Securities and Exchange Commission and the Holders such documents, reports
and information, if any, as required by Section 314 of the Trust Indenture
Act and the compliance certificate required by Section 314 of the Trust
Indenture Act, in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act.
Section 2.5. Evidence of Compliance with Conditions
Precedent.
The Guarantor shall provide to the Guarantee Trustee such
evidence of compliance with such conditions precedent, if any, provided
for in this Guarantee Agreement that relate to any of the matters set
forth in Section 314(c) of the Trust Indenture Act. Any certificate or
opinion required to be given by an officer pursuant to Section 314(c)(1)
may be given in the form of an Officers' Certificate.
Section 2.6. Events of Default; Waiver.
The Holders of a Majority in liquidation preference of
the Preferred Securities may, by vote, on behalf of the Holders, waive any
past Event of Default and its consequences. Upon such waiver, any such
Event of Default shall cease to exist, and any
<PAGE> 9
6
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Guarantee Agreement, but no such waiver shall extend
to any subsequent or other default or Event of Default or impair any right
consequent therefrom.
Section 2.7. Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after
the occurrence of an Event of Default known to the Guarantee Trustee,
transmit by mail, first class postage prepaid, to the Holders, notices of
all such Events of Default unless such defaults have been cured or waived
before the giving of such notice, provided, that, except in the case of a
default in the payment of a Guarantee Payment, the Guarantee Trustee shall
be protected in withholding such notice if and so long as the Board of
Directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Guarantee Trustee shall have
received written notice, or a Responsible Officer charged with the
administration of the Trust Agreement shall have obtained written notice,
of such Event of Default.
Section 2.8. Conflicting Interests.
The Trust Agreement shall be deemed to be specifically
described in this Guarantee Agreement for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III. POWERS, DUTIES AND RIGHTS OF
THE GUARANTEE TRUSTEE
Section 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the
Guarantee Trustee for the benefit of the Holders, and the Guarantee
Trustee shall not transfer this Guarantee Agreement to any Person except a
Holder exercising his or her rights pursuant to Section 5.4(iv) or to a
Successor Guarantee Trustee on acceptance by such Successor Guarantee
Trustee of its appointment to act as Successor Guarantee Trustee. The
right, title and interest of the Guarantee Trustee shall automatically
vest in any Successor Guarantee Trustee, upon acceptance by such Successor
Guarantee Trustee of its appointment hereunder, and such vesting and
cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered pursuant to the appointment of
such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is
continuing, the Guarantee Trustee shall enforce this Guarantee Agreement
for the benefit of the Holders.
<PAGE> 10
7
(c) The Guarantee Trustee, before the occurrence of any
Event of Default and after the curing or waiver of all Events of Default
that may have occurred, shall undertake to perform only such duties as are
specifically set forth in this Guarantee Agreement, and no implied
covenants shall be read into this Guarantee Agreement against the
Guarantee Trustee. In case an Event of Default has occurred (that has not
been cured or waived pursuant to Section 2.6), the Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Guarantee
Agreement, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be
construed to relieve the Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default
and after the curing or waiving of all such Events of Default that
may have occurred:
(A) the duties and obligations of the Guarantee
Trustee shall be determined solely by the express
provisions of this Guarantee Agreement, and the Guarantee
Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth
in this Guarantee Agreement; and
(B) in the absence of bad faith on the part of
the Guarantee Trustee, the Guarantee Trustee may
conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Guarantee
Trustee and conforming to the requirements of this
Guarantee Agreement; but in the case of any such
certificates or opinions that by any provision hereof or
of the Trust Indenture Act are specifically required to
be furnished to the Guarantee Trustee, the Guarantee
Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements
of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of
the Guarantee Trustee, unless it shall be proved that the
Guarantee Trustee was negligent in ascertaining the pertinent
facts upon which such judgment was made;
(iii) the Guarantee 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 not less
than a Majority in liquidation preference of the Preferred
Securities relating to the time, method and place of conducting
any proceeding for any remedy available to the Guarantee Trustee,
or exercising any trust or power conferred upon the Guarantee
Trustee under this Guarantee Agreement; and
<PAGE> 11
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(iv) no provision of this Guarantee Agreement shall
require the Guarantee Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of
any of its duties or in the exercise of any of its rights or
powers, if the Guarantee Trustee shall have reasonable grounds for
believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Guarantee
Agreement or adequate indemnity against such risk or liability is
not reasonably assured to it.
Section 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document reasonably
believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties.
(ii) Any direction or act of the Guarantor
contemplated by this Guarantee Agreement shall be sufficiently
evidenced by an Officer's Certificate unless otherwise prescribed
herein.
(iii) Whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a
matter be proved or established before taking, suffering or
omitting to take any action hereunder, the Guarantee Trustee
(unless other evidence is herein specifically prescribed) may, in
the absence of bad faith on its part, request and rely upon an
Officers' Certificate which, upon receipt of such request from the
Guarantee Trustee, shall be promptly delivered by the Guarantor.
(iv) The Guarantee Trustee may consult with legal
counsel, and the written advice or opinion of such legal counsel
with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted to be taken by it hereunder in good faith and
in accordance with such advice or opinion. Such legal counsel may
be legal counsel to the Guarantor or any of its Affiliates and may
be one of its employees. The Guarantee Trustee shall have the
right at any time to seek instructions concerning the
administration of this Guarantee Agreement from any court of
competent jurisdiction.
(v) The Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by
this Guarantee Agreement at the request or direction of any
Holder, unless such Holder shall have provided to the Guarantee
Trustee such adequate security and indemnity as would satisfy a
reasonable person in the position of the Guarantee Trustee,
against the costs, expenses (including attorneys' fees and
expenses) and liabilities that might be incurred by it in
complying with such request or direction, including such
reasonable advances as may be requested by the
<PAGE> 12
9
Guarantee Trustee; provided that, nothing contained in this
Section 3.2(a)(v) shall be taken to relieve the Guarantee Trustee,
upon the occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by this Guarantee
Agreement.
(vi) The Guarantee 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
Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see
fit.
(vii) The Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either
directly or by or through its agents or attorneys, and the
Guarantee Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed
with due care by it hereunder.
(viii) Any action taken by the Guarantee Trustee or its
agents hereunder shall bind the holders, and the signature of the
Guarantee Trustee or its agents alone shall be sufficient and
effective to perform such action. No third party shall be
required to inquire as to the authority of the Guarantee Trustee
to so act or as to its compliance with any of the terms and
provisions of this Guarantee Agreement, both of which shall be
conclusively evidenced by the Guarantee's or its agent's taking
such action.
(ix) Whenever in the administration of this Guarantee
Agreement the Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Guarantee Trustee (A) may
request instructions from the Holders of a Majority in Liquidation
Amount of the Securities, (B) may refrain from enforcing such
remedy or right or taking such other action until such
instructions are received, and (C) shall be protected in acting in
accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be
deemed to impose any duty or obligation on the Guarantee Trustee to
perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall be
illegal, or in which the Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or
acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Guarantee Trustee shall be
construed to be a duty to act in accordance with such power and authority.
Section 3.3. Indemnity.
The Guarantor agrees to indemnify the Guarantee Trustee
for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on the part of the Guarantee
Trustee, arising out of or in connection with the acceptance or
<PAGE> 13
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administration of this Guarantee Agreement, 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.
The Guarantee Trustee will not claim or exact any lien or charge on any
Guarantee Payments as a result of any amount due to it under this
Guarantee Agreement.
ARTICLE IV. GUARANTEE TRUSTEE
Section 4.1. Guarantee Trustee: Eligibility.
(a) There shall at all times be a Guarantee Trustee
which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) 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, and shall be a corporation
meeting the requirements of Section 310(c) of the Trust Indenture
Act. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the
supervising or examining authority, then, for the purposes of this
Section and to the extent permitted by the Trust Indenture Act,
the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to
be eligible to so act under Section 4.1(a), the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section
4.2(c).
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Guarantee Trustee and Guarantor shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section 4.2. Appointment, Removal and Resignation of
the Guarantee Trustee.
(a) Subject to Section 4.2(b), the Guarantee Trustee may
be appointed or removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a
Successor Guarantee Trustee has been appointed and has accepted such
appointment by written instrument executed by such Successor Guarantee
Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold
office until a Successor Guarantee Trustee shall have been appointed or
until its removal or resignation. The Guarantee Trustee may resign from
office (without need for prior or subsequent accounting) by an instrument
in writing executed by the Guarantee Trustee and delivered to
<PAGE> 14
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the Guarantor, which resignation shall not take effect until a Successor
Guarantee Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Guarantee Trustee and
delivered to the Guarantor and the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within
60 days after delivery to the Guarantor of an instrument of resignation,
the resigning Guarantee Trustee may petition, at the expense of the
Guarantor, any court of competent jurisdiction for appointment of a
Successor Guarantee Trustee. Such court may thereupon, after prescribing
such notice, if any, as it may deem proper, appoint a Successor Guarantee
Trustee.
ARTICLE V. GUARANTEE
Section 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to
pay in full to the Holders the Guarantee Payments (without duplication of
amounts theretofore paid by or on behalf of the Issuer), as and when due,
regardless of any defense, right of set-off or counterclaim which the
Issuer may have or assert. The Guarantor's obligation to make a Guarantee
Payment may be satisfied by direct payment of the required amounts by the
Guarantor to the Holders or by causing the Issuer to pay such amounts to
the Holders.
Section 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of the
Guarantee Agreement and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first
against the Guarantee Trustee, Issuer or any other Person before
proceeding against the Guarantor, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
Section 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the
Guarantor under this Guarantee Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Issuer of any
express or implied agreement, covenant, term or condition relating
to the Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer
of all or any portion of the Distributions (other than an
extension of time for payment of Distributions that results from
the extension of any interest payment period on the Debentures as
so provided in the Indenture), Redemption Price, Liquidation
Distribution or any other
<PAGE> 15
12
sums payable under the terms of the Securities or the extension of
time for the performance of any other obligation under, arising
out of, or in connection with, the Securities;
(c) any failure, omission, delay or lack of diligence on
the part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to
the terms of the Securities, or any action on the part of the
Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Issuer or any of
the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of
a guarantor, it being the intent of this Section 5.3 that the
obligations of the Guarantor hereunder shall be absolute and
unconditional under any and all circumstances.
There shall be no obligation of the Holders to give
notice to, or obtain the consent of, the Guarantor with respect to the
happening of any of the foregoing.
Section 5.4. Rights of Holders.
The Guarantor expressly acknowledges that: (i) this
Guarantee Agreement will be deposited with the Guarantee Trustee to be
held for the benefit of the Holders; (ii) the Guarantee Trustee has the
right to enforce this Guarantee Agreement on behalf of the Holders; (iii)
the Holders of a Majority in liquidation preference of the Securities have
the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee in respect of
this Guarantee Agreement or exercising any trust or power conferred upon
the Guarantee Trustee under this Guarantee Agreement; and (iv) if the
Guarantee Trustee fails to enforce this Guarantee Agreement after a Holder
has made a written request for the Guarantee Trustee to do so, any Holder
may, to the extent permitted by law, institute a legal proceeding directly
against the Guarantor to enforce its rights under this Guarantee
Agreement, without first instituting a legal proceeding against the
Guarantee Trustee, the Issuer or any other Person. Notwithstanding the
foregoing, if the Guarantor has failed to make a Guarantee Payment, a
Holder may directly institute a proceeding against the Guarantor for
enforcement of this Guarantee Agreement for such payment. The Guarantor
waives, any right or remedy to require that any action on this Guarantee
Agreement be brought first against the Issuer or any other Person or
entity before proceeding directly against the Guarantor.
<PAGE> 16
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Section 5.5. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment
and not of collection. This Guarantee Agreement will not be discharged
except by payment of the Guarantee Payments in full (without duplication
of amounts theretofore paid by the Issuer) or upon distribution of
Debentures to Holders as provided in the Trust Agreement.
Section 5.6. Subrogation.
The Guarantor shall be subrogated to all (if any) rights
of the Holders against the Issuer in respect of any amounts paid to the
Holders by the Guarantor under this Guarantee Agreement and shall have the
right to waive payment by the Issuer pursuant to Section 5.1; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any rights
which it may acquire by way of subrogation or any indemnity, reimbursement
or other agreement, in all cases as a result of payment under this
Guarantee Agreement, if at the time of any such payment, any amounts are
due and unpaid under this Guarantee Agreement. If any amount shall be
paid to the Guarantor in violation of the preceding sentence, the
Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
Section 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder
are independent of the obligations of the Issuer with respect to the
Securities and that the Guarantor shall be liable as principal and as
debtor hereunder to make Guarantee Payments pursuant to the terms of this
Guarantee Agreement notwithstanding the occurrence of any event referred
to in subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI. COVENANTS AND SUBORDINATION
Section 6.1. Subordination.
This Guarantee Agreement will constitute an unsecured
obligation of the Guarantor and will rank subordinate and junior in right
of payment to all Senior Indebtedness and Subordinated Indebtedness of the
Guarantor. If an Event of Default has occurred and is continuing under
the Trust Agreement, the rights of the holders of the Common Securities to
receive Guarantee Payments hereunder shall be subordinated to the rights
of the holders of Preferred Securities to receive Guarantee Payments under
this Guarantee.
Section 6.2. Pari Passu Guarantees.
This Guarantee Agreement shall rank pari passu with any
similar Guarantee Agreements issued by the Guarantor on behalf of the
holders of Preferred Securities issued by Associates First Capital Trust
__ and Associates First Capital Trust __.
<PAGE> 17
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ARTICLE VII. TERMINATION
Section 7.1. Termination.
This Guarantee Agreement shall terminate and be of no
further force and effect upon (i) full payment of the Redemption Price of
all Securities, (ii) the distribution of Debentures to the Holders in
exchange for all of the Securities or (iii) full payment of the amounts
payable in accordance with the Trust Agreement upon liquidation of the
Issuer. Notwithstanding the foregoing, this Guarantee Agreement will
continue to be effective or will be reinstated, as the case may be, if at
any time any Holder must restore payment of any sums paid with respect to
Preferred Securities or this Guarantee Agreement.
ARTICLE VIII. MISCELLANEOUS
Section 8.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee
Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the
Holders of the Securities then outstanding. Except in connection with a
consolidation, merger or sale involving the Guarantor that is permitted
under Article ___ of the Indenture and pursuant to which the assignee
agrees in writing to perform the Guarantor's obligations hereunder, the
Guarantor shall not assign its obligations hereunder.
Section 8.2. Amendments.
Except with respect to any changes which do not adversely
affect the rights of the Holders in any material respect (in which case no
consent of the Holders will be required), this Guarantee Agreement may
only be amended with the prior approval of the Holders of not less than a
Majority in liquidation preference of all the outstanding Preferred
Securities. The provisions of Article VI of the Trust Agreement
concerning meetings of the Holders shall apply to the giving of such
approval.
Section 8.3. Notices.
Any notice, request or other communication required or
permitted to be given hereunder shall be in writing, duly signed by the
party giving such notice, and delivered, telecopied or mailed by first
class mail as follows:
(a) if given to the Guarantee Trustee, at the Guarantee
Trustee's mailing address set forth below (or such other address
as the Guarantee Trustee may give notice of to the Guarantor and
the Holders):
<PAGE> 18
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The Chase Manhattan Bank
450 West 33rd St.
NY, NY 10001
Facsimile No.: 212-946-8161
Attention:
(b) if given to the Guarantor, to the address set forth
below or such other address, facsimile number or to the attention
of such other Person as the Guarantor may give notice to the
Holders of the Preferred Securities:
Associates First Capital Corporation
250 East Carpenter Freeway
Irving, Texas 75062
Facsimile No.:
Attention: Treasurer
(c) if given to the Issuer, in care of the Guarantee
Trustee, at the Issuer's (and the Guarantee Trustee's) address set
forth below or such other address as the Guarantee Trustee on
behalf of the Issuer may give notice to the Holders:
Associates First Capital Trust __
c/o Associates First Capital Corporation
250 East Carpenter Freeway
Irving, Texas 75062
Facsimile No.:
Attention: Treasurer
with a copy to:
The Chase Manhattan Bank
450 West 33rd St.
New York, NY 10001
Facsimile No.: 212-946-8161
Attention:
(d) if given to any Holder, at the address set forth on
the books and records of the Issuer.
All notices hereunder shall be deemed to have been given
when received in person, telecopied with receipt confirmed, or mailed by
first class mail, postage prepaid, except that if a notice or other
document is refused delivery or cannot be delivered because of a changed
address of which no notice was given, such notice or other document shall
be deemed to have been delivered on the date of such refusal or inability
to deliver.
Section 8.4. Benefit.
This Guarantee Agreement is solely for the benefit of the
Holders and is not separately transferable from the Preferred Securities.
<PAGE> 19
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Section 8.5. Interpretation.
In this Guarantee Agreement, unless the context otherwise
requires:
(a) capitalized terms used in this Guarantee Agreement
but not defined in the preamble hereto have the respective
meanings assigned to them in Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement
has the same meaning throughout;
(c) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified,
supplemented or amended from time to time;
(d) all references in this Guarantee Agreement to
Articles and Sections are to Articles and Sections of this
Guarantee Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the
same meaning when used in this Guarantee Agreement unless
otherwise defined in this Guarantee Agreement or unless the
context otherwise requires;
(f) a reference to the singular includes the plural and
vice versa; and
(g) the masculine, feminine or neuter genders used
herein shall include the masculine, feminine and neuter genders.
Section 8.6. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
<PAGE> 20
17
THIS GUARANTEE AGREEMENT is executed as of the day and
year first above written.
ASSOCIATES FIRST CAPITAL
CORPORATION
By:
--------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Guarantee Trustee
By:
--------------------------------------
Name:
Title:
<PAGE> 1
EXHIBIT 5.1
Associates First Capital Corporation
250 East Carpenter Freeway
Irving, Texas 75062
September 15, 1998
Associates First Capital Corporation
250 E. Carpenter Freeway
Irving, TX 75062-2729
Ladies and Gentlemen:
I am Vice President and Assistant General Counsel of Associates First
Capital Corporation, a Delaware corporation (the "Company"), and I have advised
the Company in connection with the registration, pursuant to the Registration
Statement on Form S-3 (File No. 333-62875) (the "Registration Statement") filed
with the Securities and Exchange Commission under the Securities Act of 1933
(the "Act"), of up to $7,500,000,000 of the Company's (i) debt securities ("Debt
Securities"), (ii) preferred stock, par value $.01 per share (the "Preferred
Stock"), (iii) Class A Common Stock, par value $.01 per share (the "Common
Stock"), (iv) warrants to purchase Debt Securities, Preferred Stock or Class A
Common Stock (the "Warrants"), (v) stock purchase contracts to purchase Class A
Common Stock (the "Stock Purchase Contracts") and/or (vi) stock purchase units
("Stock Purchase Units"), each representing ownership of a Stock Purchase
Contract and any of (x) Debt Securities (y) debt obligations of third parties,
including U.S. Treasury Securities, or (z) Preferred Securities of Associates
First Capital Trust I, Associates First Capital Trust II or Associates First
Capital Trust III (each, an "Associates Trust") and (vii) the guarantee of the
Company of any Preferred Securities issued by each Associates Trust pursuant to
a Guarantee Agreement to be executed by the Company (the "Guarantees"), each to
be offered from time to time by the Company pursuant to the Registration
Statement. The Debt Securities, the Preferred Stock, the Class A Common Stock,
the Warrants, the Stock Purchase Contracts, the Stock Purchase Units and the
Guarantees shall be collectively referred to as the "Offered Securities."
In connection with the filing of the Registration Statement, you have
requested my opinion concerning certain corporate matters.
When (i) the Registration Statement has become effective under the Act,
(ii) the terms of any class or series of Offered Securities have been authorized
by appropriate action of the Company in a manner that would not violate any
applicable law or result in a default under or breach of any agreement or
instrument binding upon the Company and so as to comply with any requirement or
restriction imposed by a court or a governmental or regulatory body having
jurisdiction over the Company, (iii) any such class or series of Offered
Securities has been duly issued and sold, and payment has been received for such
Offered Securities in the
<PAGE> 2
Associates First Capital Corporation
September 14, 1998
Page 2
manner contemplated in the Registration Statement and any prospectus supplement
relating thereto, then (a) the Preferred Stock and Class A Common Stock will be
validly issued, fully paid and nonassessable and (b) the Debt Securities, the
Warrants, the Stock Purchase Units and the Guarantees will be duly authorized
and legally issued and will constitute valid and binding obligations of the
Company enforceable in accordance with their respective terms subject to (x)
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium and
other similar laws now or hereafter in effect relating to or affecting
creditors' rights generally, (y) general principles of equity (regardless of
whether considered in a proceeding or law or in equity) and (z) the
qualification that the remedy of specific performance and injunctive or other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding may be brought.
I hereby consent that the foregoing opinion may be filed as an exhibit
to the above referenced Registration Statement. I further consent to the use of
my name in the Registration Statement and the Prospectus related thereto.
By his signature below, Timothy M. Hayes hereby consents to the use of
his name in the Registration Statement and the Prospectus related thereto.
Very truly yours,
/s/ FREDERIC C. LISKOW
Frederic C. Liskow
Vice President and Assistant General Counsel
Consent
/s/ TIMOTHY M. HAYES
- --------------------------------------------
Timothy M. Hayes
Vice President and Assistant General Counsel
<PAGE> 1
EXHIBIT 5.2
[Letterhead of Richards, Layton & Finger, P.A.]
September 15, 1998
Associates First Capital Trust I
c/o Associates First Capital Corporation
250 East Carpenter Freeway
Irving, Texas 75062
Re: Associates First Capital Trust I
Ladies and Gentlemen:
We have acted as special Delaware counsel for Associates First
Capital Corporation, a Delaware corporation (the "Company"), and Associates
First Capital Trust I, a Delaware business trust (the "Trust"), in connection
with the matters set forth herein. At your request, this opinion is being
furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated September 3,
1998 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on September 3, 1998;
(b) The Trust Agreement of the Trust, dated as of September 3,
1998, among the Company, as depositor, and the trustees of the Trust named
therein;
(c) A form of Amended and Restated Trust Agreement of the
Trust (including Exhibits A, C and E thereto) (the "Trust Agreement"), to be
entered into among the Company, as depositor, the trustees of the Trust named
therein and the holders, from time to time, of undivided beneficial interests in
the assets of the Trust, attached as an exhibit to the Registration Statement;
<PAGE> 2
Associates First Capital Trust I
September 15, 1998
Page 2
(d) Amendment No. 1 to the Registration Statement on Form S-3
(the "Registration Statement"), including a preliminary prospectus (the
"Prospectus"), relating to the Preferred Securities of the Trust representing
undivided beneficial interests in the assets of the Trust (each, a "Preferred
Security" and collectively, the "Preferred Securities"), as proposed to be filed
by the Company, the Trust and others with the Securities and Exchange Commission
on or about September 15, 1998; and
(e) A Certificate of Good Standing for the Trust, dated
September 15, 1998, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Trust Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and that the Trust Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trust (collectively, the "Preferred
Security Holders") of a Preferred Securities Certificate, in
<PAGE> 3
Associates First Capital Trust I
September 15, 1998
Page 3
accordance with the Trust Agreement, and as described in the Registration
Statement, and (vii) that the Preferred Securities are issued to the Preferred
Security Holders in accordance with the Trust Agreement, and as described in the
Registration Statement. We have not participated in the preparation of the
Registration Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject
to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Validity
of Securities" in the Prospectus. In giving the foregoing consents, we do not
thereby admit that we come within the category of Persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the rules
and regulations of the Securities and Exchange Commission thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
<PAGE> 1
EXHIBIT 5.3
[Letterhead of Richards, Layton & Finger, P.A.]
September 15, 1998
Associates First Capital Trust II
c/o Associates First Capital Corporation
250 East Carpenter Freeway
Irving, Texas 75062
Re: Associates First Capital Trust II
Ladies and Gentlemen:
We have acted as special Delaware counsel for Associates First Capital
Corporation, a Delaware corporation (the "Company"), and Associates First
Capital Trust II, a Delaware business trust (the "Trust"), in connection with
the matters set forth herein. At your request, this opinion is being furnished
to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated September 3, 1998
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on September 3, 1998;
(b) The Trust Agreement of the Trust, dated as of September 3,
1998, among the Company, as depositor, and the trustees of the Trust named
therein;
(c) A form of Amended and Restated Trust Agreement of the Trust
(including Exhibits A, C and E thereto) (the "Trust Agreement"), to be entered
into among the Company, as depositor, the trustees of the Trust named therein
and the holders, from time to time, of undivided beneficial interests in the
assets of the Trust, attached as an exhibit to the Registration Statement;
<PAGE> 2
Associates First Capital Trust II
September 15, 1998
Page 2
(d) Amendment No. 1 to the Registration Statement on Form S-3 (the
"Registration Statement"), including a preliminary prospectus (the
"Prospectus"), relating to the Preferred Securities of the Trust representing
undivided beneficial interests in the assets of the Trust (each, a "Preferred
Security" and collectively, the "Preferred Securities"), as proposed to be
filed by the Company, the Trust and others with the Securities and Exchange
Commission on or about September 15, 1998; and
(e) A Certificate of Good Standing for the Trust, dated September
15, 1998, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular,
we have not reviewed any document (other than the documents listed in
paragraphs (a) through (e) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed that there exists
no provision in any document that we have not reviewed that is inconsistent
with the opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the foregoing
documents, the statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed to be true,
complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and that the Trust Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to
whom a Preferred Security is to be issued by the Trust (collectively, the
"Preferred Security Holders") of a Preferred Securities Certificate, in
<PAGE> 3
Associates First Capital Trust II
September 15, 1998
Page 3
accordance with the Trust Agreement, and as described in the Registration
Statement, and (vii) that the Preferred Securities are issued to the Preferred
Security Holders in accordance with the Trust Agreement, and as described in
the Registration Statement. We have not participated in the preparation of the
Registration Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our
opinions are rendered only with respect to Delaware laws and rules, regulations
and orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to
the qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition,
we hereby consent to the use of our name under the heading "Validity of
Securities" in the Prospectus. In giving the foregoing consents, we do not
thereby admit that we come within the category of Persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the
rules and regulations of the Securities and Exchange Commission thereunder.
Except as stated above, without our prior written consent, this opinion may not
be furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
<PAGE> 1
EXHIBIT 5.4
[Letterhead of Richards, Layton & Finger, P.A.]
September 15, 1998
Associates First Capital Trust III
c/o Associates First Capital Corporation
250 East Carpenter Freeway
Irving, Texas 75062
Re: Associates First Capital Trust III
Ladies and Gentlemen:
We have acted as special Delaware counsel for Associates First Capital
Corporation, a Delaware corporation (the "Company"), and Associates First
Capital Trust III, a Delaware business trust (the "Trust"), in connection with
the matters set forth herein. At your request, this opinion is being furnished
to you.
For purposes of giving the opinions hereinafter set forth, our examination
of documents has been limited to the examination of originals or copies of the
following:
(a) The Certificate of Trust of the Trust, dated September 3, 1998 (the
"Certificate"), as filed in the office of the Secretary of State of the State of
Delaware (the "Secretary of State") on September 3, 1998;
(b) The Trust Agreement of the Trust, dated as of September 3, 1998, among
the Company, as depositor, and the trustees of the Trust named therein;
(c) A form of Amended and Restated Trust Agreement of the Trust (including
Exhibits A, C and E thereto) (the "Trust Agreement"), to be entered into among
the Company, as depositor, the trustees of the Trust named therein and the
holders, from time to time, of undivided beneficial interests in the assets of
the Trust, attached as an exhibit to the Registration Statement;
<PAGE> 2
Associates First Capital Trust III
September 15, 1998
Page 2
(d) Amendment No. 1 to the Registration Statement on Form S-3 (the
"Registration Statement"), including a preliminary prospectus (the
"Prospectus"), relating to the Preferred Securities of the Trust representing
undivided beneficial interests in the assets of the Trust (each, a "Preferred
Security" and collectively, the "Preferred Securities"), as proposed to be filed
by the Company, the Trust and others with the Securities and Exchange Commission
on or about September 15, 1998; and
(e) A Certificate of Good Standing for the Trust, dated September 15,
1998, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are used
as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other than
the documents listed in paragraphs (a) through (e) above. In particular, we have
not reviewed any document (other than the documents listed in paragraphs (a)
through (e) above) that is referred to in or incorporated by reference into the
documents reviewed by us. We have assumed that there exists no provision in any
document that we have not reviewed that is inconsistent with the opinions stated
herein. We have conducted no independent factual investigation of our own but
rather have relied solely upon the foregoing documents, the statements and
information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust Agreement
constitutes the entire agreement among the parties thereto with respect to the
subject matter thereof, including with respect to the creation, operation and
termination of the Trust, and that the Trust Agreement and the Certificate are
in full force and effect and have not been amended, (ii) except to the extent
provided in paragraph 1 below, the due creation or due organization or due
formation, as the case may be, and valid existence in good standing of each
party to the documents examined by us under the laws of the jurisdiction
governing its creation, organization or formation, (iii) the legal capacity of
natural persons who are parties to the documents examined by us, (iv) that each
of the parties to the documents examined by us has the power and authority to
execute and deliver, and to perform its obligations under, such documents, (v)
the due authorization, execution and delivery by all parties thereto of all
documents examined by us, (vi) the receipt by each Person to whom a Preferred
Security is to be issued by the Trust (collectively, the "Preferred Security
Holders") of a Preferred Securities Certificate, in
<PAGE> 3
Associates First Capital Trust III
September 15, 1998
Page 3
accordance with the Trust Agreement, and as described in the Registration
Statement, and (vii) that the Preferred Securities are issued to the Preferred
Security Holders in accordance with the Trust Agreement, and as described in the
Registration Statement. We have not participated in the preparation of the
Registration Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware (excluding the
securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal laws
and rules and regulations relating thereto. Our opinions are rendered only with
respect to Delaware laws and rules, regulations and orders thereunder that are
currently in effect.
Based upon the foregoing, and upon our examination of such questions of law
and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the Registration Statement. In addition, we hereby
consent to the use of our name under the heading "Validity of Securities" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of Persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
<PAGE> 1
EXHIBIT 25.1
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
ASSOCIATES FIRST CAPITAL CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 06-0876639
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
250 EAST CARPENTER FREEWAY
IRVING, TEXAS 75062-2729
(Address of principal executive offices) (Zip Code)
-----
SENIOR DEBT SECURITIES
(Title of the indenture securities)
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, 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 1st day of September, 1998.
THE CHASE MANHATTAN BANK
By /s/ ANDREW M. DECK
-----------------------------
Andrew M. Deck
Vice President
-3-
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1998, 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 MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin .................................. $ 12,546
Interest-bearing balances .......................... 6,610
Securities:
Held to maturity securities ............................. 2,014
Available for sale securities ........................... 46,342
Federal funds sold and securities purchased under
agreements to resell ............................... 27,489
Loans and lease financing receivables:
Loans and leases, net of unearned income ........... $129,281
Less: Allowance for loan and lease losses .......... 2,796
Less: Allocated transfer risk reserve .............. 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ............................. 126,485
Trading Assets .......................................... 58,015
Premises and fixed assets (including capitalized
leases) ............................................ 3,001
Other real estate owned ................................. 260
Investments in unconsolidated subsidiaries and
associated companies ............................... 255
Customers' liability to this bank on acceptances
outstanding ........................................ 1,245
Intangible assets ....................................... 1,492
Other assets ............................................ 16,408
--------
TOTAL ASSETS ............................................ $302,162
========
</TABLE>
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<PAGE> 5
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices ................................... $ 99,347
Noninterest-bearing ................................... $ 41,566
Interest-bearing ...................................... 57,781
In foreign offices, Edge and Agreement, ---------
subsidiaries and IBF's ................................ 80,602
Noninterest-bearing ........................................ $ 4,109
Interest-bearing ...................................... 76,493
Federal funds purchased and securities sold under agree-
ments to repurchase ........................................ 37,760
Demand notes issued to the U.S. Treasury ................... 1,000
Trading liabilities ........................................ 42,941
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ......... 4,162
With a remaining maturity of more than one year ............
through three years .............................. 213
With a remaining maturity of more than three years .... 106
Bank's liability on acceptances executed and outstanding 1,245
Subordinated notes and debentures .......................... 5,408
Other liabilities .......................................... 11,796
TOTAL LIABILITIES .......................................... 284,580
---------
EQUITY CAPITAL
Perpetual preferred stock and related surplus .............. 0
Common stock ............................................... 1,211
Surplus (exclude all surplus related to preferred stock)... 10,441
Undivided profits and capital reserves ..................... 5,916
Net unrealized holding gains (losses)
on available-for-sale securities ........................... (2)
Cumulative foreign currency translation adjustments ........ 16
TOTAL EQUITY CAPITAL ....................................... 17,582
---------
TOTAL LIABILITIES AND EQUITY CAPITAL ....................... $ 302,162
=========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
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 appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
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