<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 7, 1994
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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AVCO FINANCIAL SERVICES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
Delaware 13-2530491
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
3349 Michelson Drive 92715
Irvine, California (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
</TABLE>
Registrant's telephone number, including area code: 714-553-1200
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<TABLE>
<S> <C>
HERBERT F. SMITH, Esq. Copies of Communications to:
General Counsel DAVID P. BICKS, Esq.
AVCO FINANCIAL SERVICES, INC. LEBOEUF, LAMB, GREENE & MACRAE
3349 Michelson Drive 125 West 55th Street
Irvine, California 92715 New York, New York 10019-5389
(NAME AND ADDRESS OF AGENT FOR SERVICE)
</TABLE>
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Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement as determined by
market conditions.
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If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. / /
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. /X/
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<S> <C> <C> <C> <C>
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<CAPTION>
<S> <C> <C> <C> <C>
PROPOSED
PROPOSED MAXIMUM
TITLE OF EACH MAXIMUM AGGREGATE
CLASS OF SECURITIES AMOUNT TO OFFERING PRICE OFFERING AMOUNT OF
TO BE REGISTERED BE REGISTERED(1) PER UNIT(2) PRICE(2) REGISTRATION FEE
</TABLE>
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<TABLE>
<S> <C> <C> <C> <C>
Debt Securities and Warrants to
purchase Debt Securities........ $1,500,000,000 100% $1,500,000,000 $300,000
</TABLE>
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(1) Or, if any Debt Securities are issued at original issue discount, such
greater amount as may result in the initial offering prices for Debt Securities
and Warrants aggregating $1,500,000,000.
(2) Estimated solely for the purpose of determining the registration fee.
Any offering of Debt Securities or Warrants denominated in any foreign
currencies or foreign currency units will be treated as the equivalent in U.S.
dollars based on the exchange rate applicable to the purchase of such Debt
Securities or Warrants from the registrant.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS 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
AVCO FINANCIAL SERVICES, INC.
DEBT SECURITIES
WARRANTS TO PURCHASE DEBT SECURITIES
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The Company from time to time may issue in one or more series its unsecured
debt securities ("Debt Securities") and warrants ("Warrants") to purchase Debt
Securities (the Debt Securities and the Warrants being herein collectively
called the "Securities") for proceeds up to $1,500,000,000, or the equivalent
thereof if any of the Securities are denominated in a foreign currency or a
foreign currency unit. The Debt Securities of each series will be offered on
terms determined at the time of sale. The Debt Securities and Warrants may be
sold for U.S. dollars, foreign currencies or foreign currency units, and the
principal of and any interest on the Debt Securities may be payable in U.S.
dollars, foreign currencies or foreign currency units. The specific designation,
aggregate principal amount, the currency or currency unit for which the
Securities may be purchased, the currency or currency unit in which the
principal and any interest is payable, the rate (or method of calculation) and
time of payment of any interest, authorized denominations, maturity, offering
price, any redemption terms, any exchange or conversion terms or other specific
terms of the series of Debt Securities in respect of which this Prospectus is
being delivered are set forth in the accompanying Prospectus Supplement
("Prospectus Supplement"). With regard to the Warrants, if any, in respect of
which this Prospectus is being delivered, the Prospectus Supplement sets forth a
description of the Debt Securities for which each Warrant is exercisable and the
offering price, if any, exercise price, duration, detachability and other terms
of the Warrants.
The Securities may be sold through underwriters or dealers or may be sold
by the Company 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 of which this Prospectus is being delivered and their compensation are
set forth in the Prospectus Supplement.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
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The date of this Prospectus is October , 1994
<PAGE> 3
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 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 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.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 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 60661-2511; and 7 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. This Prospectus does not contain all information set forth in
the Registration Statements and Exhibits thereto which the Company has filed
with the Commission under the Securities Act of 1933 and to which reference is
hereby made.
The Company intends to publish annual reports with financial information
that has been audited and reported upon, with an opinion expressed, by
independent auditors. These reports will not be distributed to holders of the
Securities but will be available to them upon request.
DOCUMENTS INCORPORATED BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1993, its Quarterly Reports on Form 10-Q for the quarters ended March 31,
1994 and June 30, 1994 and its Current Reports on Form 8-K dated July 26, 1994
and August 23, 1994, heretofore filed with the Commission pursuant to the
Securities Exchange Act of 1934, are incorporated herein by reference. All
documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934 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. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein or in the accompanying Prospectus
Supplement modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
THE COMPANY WILL 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: AVCO FINANCIAL SERVICES, INC., 3349
MICHELSON DRIVE, IRVINE, CALIFORNIA 92715, ATTENTION: TREASURER (714-553-1200).
2
<PAGE> 4
THE COMPANY
Avco Financial Services, Inc. (the "Company"), organized under the laws of
Delaware on July 17, 1964, is the successor to the finance business of Seaboard
Finance Company, originally established in 1927, and the finance business of
Delta Acceptance Corporation Limited, originally established in 1954. All the
Company's outstanding capital stock is owned by Textron Inc., a Delaware
corporation. Unless the context otherwise requires, the term "Company" herein
refers to Avco Financial Services, Inc. and its consolidated subsidiaries.
The Company is principally engaged in consumer finance and insurance
activities. The Company's finance operations mainly involve loans made by the
Avco Financial Services Group consisting of consumer loans, which are unsecured
or secured by personal property and are in relatively small amounts and for
relatively short periods; real estate loans, which are secured by real property
and are in larger amounts and for considerably longer periods; and retail
installment contracts, principally covering personal property. As of June 30,
1994 the Company operated 1,292 finance offices located in all states of the
United States (except Alaska, Arkansas, Kansas, Maine, Michigan, Mississippi,
Oklahoma, Texas and Vermont), the Commonwealth of Puerto Rico, the Virgin
Islands, all Canadian provinces and the Yukon Territory, six Australian states
and the Australian Capital Territory, New Zealand, Spain and the United Kingdom.
In September, 1994, the Company commenced a finance operation in Hong Kong. The
Company's insurance business consists primarily of the sale of credit life,
credit disability and casualty insurance offered by various subsidiaries (Avco
Insurance Services Group), a significant part of which is directly related to
its finance activities.
The Company's principal executive offices are located at 3349 Michelson
Drive, Irvine, California 92715 (tel. 714-553-1200).
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,
- ---------------------------------------- ----------
1989 1990 1991 1992 1993 1994
- ---- ---- ---- ---- ---- ----------
<S> <C> <C> <C> <C> <C>
1.5 1.5 1.5 1.5 1.7 1.8
</TABLE>
The ratios of earnings to fixed charges represent the number of times fixed
charges (interest and debt expense [without adjustments for discounts or
premiums from the repurchase of debt securities] and one-third of all rent and
related costs, considered to represent an appropriate interest factor, charged
to income) are covered by earnings from operations before income taxes,
extraordinary item, cumulative effect of changes in accounting principles and
fixed charges.
APPLICATION OF PROCEEDS
Unless otherwise specified in the Prospectus Supplement which accompanies
this Prospectus, the net proceeds from the sale of the Securities will be added
to the general funds of the Company and will be applied initially to the
reduction of short-term commercial paper borrowings incurred in the ordinary
course of the financing activities of the Company. Additional financing which
may be required from time to time will be effected through such means as the
Company deems appropriate at the time. The amount of further financing, as well
as the purposes for which the proceeds thereof will be used, cannot now be
determined.
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<PAGE> 5
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will constitute senior debt of the Company and will be
issued under one or more separate indentures described below (each an
"Indenture"), in each case between the Company and a banking institution
organized under the laws of the United States of America or of any State thereof
(each a "Trustee"). 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, a copy of 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 the applicable Indenture.
GENERAL
The Debt Securities will be unsecured obligations of the Company. 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 which may be authorized from
time to time by the Company. (Article Three) The Indentures do not contain any
covenant or other provision that is specifically intended to afford any Holder
special protection in the event of a highly leveraged transaction. Reference is
made to the Prospectus Supplement which accompanies this Prospectus for the
following terms and other information with respect to the Debt Securities being
offered thereby: (i) the title of the Debt Securities; (ii) the designation,
aggregate principal amount and authorized denominations of such Debt Securities;
(iii) the percentage of their principal amount at which such Debt Securities
will be issued; (iv) 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; (v) the date on which such Debt Securities will mature; (vi) the rate
per annum at which such Debt Securities will bear interest, if any, or the
method of determination of such rate; (vii) the dates on which such interest, if
any, will be payable and the record dates for such payment dates; (viii) the
Trustee under the Indenture pursuant to which the Debt Securities are to be
issued; (ix) any redemption terms; and (x) any exchange or conversion terms or
other specific terms.
If any of the 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.
Unless otherwise specified in the Prospectus Supplement which accompanies
this Prospectus, principal, premium, if any, and interest, if any, are to be
payable at the Corporate Trust Office of the Trustee or its successors in The
City of New York, or at the office or agency of the Company maintained for such
purposes in the Borough of Manhattan, The City of New York, provided that
payment of interest, if any, may be made at the option of the Company by check
mailed to the persons in whose names the Debt Securities are registered at the
close of business on the day specified in the Prospectus Supplement accompanying
this Prospectus. (sec. 3.12)
The Debt Securities will be issued only in fully registered form without
coupons. (sec. 3.02) Such Debt Securities will be exchangeable for other Debt
Securities of the same series, registered in the same name, for a like aggregate
principal amount in authorized denominations and will be transferable at any
time or from time to time at the Corporate Trust Office of the Trustee or at any
other office or agency of the Company maintained for that purpose. No charge
will be made to the Holder for any such exchange or transfer except for any tax
or governmental charge incidental thereto. (sec. 3.05) If so specified in the
Prospectus Supplement which accompanies this Prospectus, the Company may provide
for the issuance of uncertificated Debt Securities in addition to or in place of
certificated Debt Securities and for the issuance of one or more Global
Securities denominated in an amount equal to all or a portion of the aggregate
principal amount of the series of Debt Securities.
Debt Securities of a single series may be issued at various times with
different maturity dates, may bear interest at different rates and may otherwise
vary.
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<PAGE> 6
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. Federal income tax
consequences and special considerations applicable to any such series will be
described in the Prospectus Supplement relating thereto.
None of the Company's outstanding debt is, and the Debt Securities will not
be, guaranteed by Textron Inc.
CERTAIN RESTRICTIVE PROVISIONS
None of the Indentures limits the amount of indebtedness which may be
incurred by the Company or its Subsidiaries but each Indenture contains a
covenant that neither the Company nor any of its Domestic Finance Subsidiaries
or Domestic Insurance Subsidiaries will suffer to exist any lien upon its assets
or acquire assets subject to any lien, except (i) liens for taxes and
governmental charges not yet due or being contested in good faith; (ii)
incidental liens other than in connection with the borrowing of money or
obtaining of credit; (iii) liens securing obligations of a Domestic Finance
Subsidiary or Domestic Insurance Subsidiary to the Company or another Domestic
Finance Subsidiary or Domestic Insurance Subsidiary; (iv) certain liens on
acquired property; and (v) conditional sales or title retention agreements and
other security devices affecting certain acquired property. (sec. 12.08) In
addition, each Indenture provides that neither the Company nor any Subsidiary
will make any loan to, or enter into any other transaction with, an Affiliate on
terms and conditions less favorable to the Company or such Subsidiary than the
terms and conditions which would apply in a similar transaction with an
unaffiliated party, provided that this covenant will not apply to transactions
involving the Company and its Subsidiaries exclusively. (sec. 12.09) The Holders
of 66 2/3% in principal amount of the Debt Securities at the time Outstanding of
each series which is affected thereby, may waive from time to time compliance by
the Company with the foregoing restrictive covenants. (sec. 12.11)
MODIFICATION OF THE INDENTURES
Modifications and amendments of any Indenture may be made by the Company
and the applicable Trustee with the consent of the Holders of 66 2/3% in
principal amount of each series of the Debt Securities at the time Outstanding
under such Indenture which is affected thereby, provided that no such
modification or amendment may, without the consent of the Holder of each Debt
Security affected thereby: (i) modify the terms of payment of principal,
premium, if any, or interest; (ii) reduce the above stated percentage of Holders
of Debt Securities necessary to modify or amend such Indenture or waive
compliance by the Company with any restrictive covenant; or (iii) subordinate
the indebtedness evidenced by the Debt Securities to any indebtedness of the
Company. (sec. 11.02)
EVENTS OF DEFAULT, NOTICE AND WAIVER
Except as may otherwise be set forth in the Prospectus Supplement, each
Indenture provides that the following are Events of Default thereunder with
respect to any series of Debt Securities issued thereunder; default in the
payment of the principal of (or premium, if any, on) any Debt Security of such
series at its Maturity; 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 written notice in
the performance of any other covenant in respect of the Debt Securities of such
series contained in such Indenture; certain events of bankruptcy, insolvency or
reorganization, or court appointment of a receiver, liquidator or trustee of the
Company or its property; an event of default with respect to any other series of
Debt Securities outstanding under such Indenture or as defined in any other
indenture or instrument evidencing or under which the Company has outstanding
any indebtedness for borrowed money, as a result of which indebtedness of the
Company shall have been accelerated and such acceleration shall not have been
annulled within 10 days after written notice thereof; and any other Event of
Default provided in the applicable resolution of the Board of Directors or
supplemental indenture under which such series of Debt Securities is issued.
(sec. 7.01) An Event of Default with respect to a particular series of Debt
Securities does not necessarily constitute an Event of Default with respect to
any other series of Debt Securities issued under the same or another Indenture.
The
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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,
premium or interest) if it considers such withholding in the interests of such
Holders. (sec. 8.02)
If an Event of Default with respect to any series of Debt Securities shall
have occurred and be continuing, the Trustee or the Holders of 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. (sec.
7.02)
Each Indenture contains a provision entitling the Trustee to be indemnified
by the Holders of Debt Securities issued thereunder before proceeding to
exercise any right or power under such Indenture at the request of any Holders.
(sec. 8.03) Each Indenture provides that the Holders of a majority in principal
amount of the Outstanding Debt Securities of any series issued thereunder may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred upon the
Trustee, with respect to the Debt Securities of such series. (sec. 7.12) The
right of the Holder to institute a proceeding with respect to the applicable
Indenture is subject to certain conditions precedent including notice and
indemnity to the applicable Trustee, but each Holder has an absolute right to
receipt of principal, premium, if any, and interest at the respective Stated
Maturities (or, in the case of redemption, on the Redemption Date) or to
institute suit for the enforcement thereof. (sec.sec. 7.07 and 7.08)
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series may on behalf of the Holders of all
the Debt Securities of such series waive any past defaults except (a) a default
in payment of the principal of (or premium, if any) or interest, if any, or
sinking fund payments, if any, on any Debt Security of such series and (b) a
default in respect of a covenant or provision of the applicable Indenture which
cannot be amended or modified without the consent of the Holder of each
Outstanding Debt Security affected. (sec. 7.13)
Each Indenture requires the Company to furnish to the applicable Trustee
annual statements as to the fulfillment by the Company of its obligations under
such Indenture. (sec. sec. 9.04 and 12.06)
CONCERNING THE TRUSTEES
Business and other relationships (including other trusteeships) between the
Company and its affiliates and each Trustee under any Indenture pursuant to
which any of the Debt Securities to which the Prospectus Supplement accompanying
this Prospectus relates are described in such Prospectus Supplement.
DESCRIPTION OF WARRANTS
The following statements with respect to the Warrants are summaries of, and
subject to, the detailed provisions of one or more separate Warrant Agreements
(each a "Warrant Agreement") between the Company and one or more banking
institutions organized under the laws of the United States of America or any
State thereof, as Warrant Agent (each a "Warrant Agent"), a form of which is
filed as an exhibit to the Registration Statement.
GENERAL
The Warrants, evidenced by Warrant Certificates (the "Warrant
Certificates") may be issued under a Warrant Agreement independently or together
with any Debt Securities offered by any Prospectus Supplement and may be
attached to or separate from such Debt Securities. If Warrants are offered, the
Prospectus Supplement will describe the terms of the 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 Warrants; (iii) if applicable, the designation and terms of the Debt
Securities with which the Warrants are issued and the number of Warrants issued
with each such Debt Security; (iv) if applicable, the date on and after which
the Warrants and the related Debt Securities will be separately transferable;
(v) the principal amount of Debt Securities purchasable upon exercise of one
Warrant and the price at which such principal
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<PAGE> 8
amount of Debt Securities may be purchased upon such exercise; (vi) the date on
which the right to exercise the Warrants shall commence and the date on which
such right shall expire; (vii) federal income tax consequences; (viii) whether
the Warrants represented by the Warrant Certificates will be issued in
registered or bearer form; and (ix) any other terms of the Warrants.
Warrant Certificates may be exchanged for new Warrant Certificates of
different denominations and may (if in registered form) be presented for
registration of transfer at the corporate trust office of the Warrant Agent or
any Co-Warrant Agent, which will be listed in the Prospectus Supplement, or at
such other office as may be set forth therein. Warrantholders do not have any of
the rights of holders of Debt Securities (except to the extent that the consent
of Warrantholders may be required for certain modifications of the terms of an
Indenture and the series of Debt Securities issuable upon exercise of the
Warrants) and are not entitled to payments of principal and interest, if any, on
such Debt Securities.
EXERCISE OF WARRANTS
Warrants may be exercised by surrendering the Warrant Certificate at the
corporate trust office of the Warrant Agent or at the corporate trust office of
the Co-Warrant Agent, if any, with the form of election to purchase on the
reverse side of the Warrant Certificate properly completed and executed, and by
payment in full of the exercise price, as set forth in the Prospectus
Supplement. Upon exercise of Warrants, the Warrant Agent will, as soon as
practicable, deliver the Debt Securities in authorized denominations in
accordance with the instructions of the exercising Warrantholder and at the sole
cost and risk of such holder. If less than all of the Warrants evidenced by the
Warrant Certificate are exercised, a new Warrant Certificate will be issued for
the remaining amount of Warrants.
PLAN OF DISTRIBUTION
The Company may sell the Securities (i) through underwriters or dealers;
(ii) directly to one or more institutional 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 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 exchanges 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 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 sold directly by the Company 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 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.
As one of the means of direct issuance of the Debt Securities, the Company
may utilize the services of another entity to conduct an electronic "dutch
auction" of the Debt Securities among potential purchasers who are eligible to
participate in the auction of such Securities, as described in the Prospectus
Supplement.
If so indicated in the Prospectus Supplement, the Company 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
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<PAGE> 9
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. 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 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.
Agents and underwriters may be entitled under agreements entered into with
the Company 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 in the ordinary course of business.
LEGAL AND AUDIT OPINIONS
Certain legal matters in connection with the Securities being offered
hereby will be passed upon for the Company by its Senior Vice President,
Secretary and General Counsel, Herbert F. Smith, Esq., 3349 Michelson Drive,
Irvine, California 92715, and for any underwriters or agents by LeBoeuf, Lamb,
Greene & MacRae, a partnership including professional corporations, 125 West
55th Street, New York, New York 10019.
The consolidated financial statements and schedules of the Company
appearing in the Company's Annual Report on Form 10-K for the year ended
December 31, 1993 have been audited by Ernst & Young LLP, independent auditors,
as set forth in their report thereon included therein and incorporated herein by
reference. Such financial statements and schedules are incorporated herein by
reference in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
8
<PAGE> 10
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
Filing Fee--Securities and Exchange Commission...................... $ 300,000
Accounting Fees and Expenses........................................ 30,000*
Legal Fees.......................................................... None
Printing and Engraving.............................................. 125,000*
Trustee's and Warrant Agent's Fees.................................. 100,000*
Rating Agency Fees.................................................. 1,300,000*
Blue Sky Fees and Expenses.......................................... 40,000*
Miscellaneous....................................................... 25,000*
----------
Total..................................................... $1,920,000
=========
------------
* Estimated subject to future contingencies.
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware permits
indemnification by a corporation to any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit, or proceeding, whether civil or criminal, administrative or investigative,
because he is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise. Depending on the character of the proceeding, a corporation
may indemnify for expenses, including attorney's fees, judgments, fines and
amounts paid in settlement actually and reasonably incurred in connection with
such action, suit or proceeding. The person claiming indemnification must have
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. An adjudication of negligence or misconduct in the performance of
his duty to the corporation may be a bar to a claim for indemnification.
The By-Laws of Textron Inc. and Section 317 of the California Corporations
Code also provide for indemnification of directors and officers under certain
conditions.
The directors and officers of the registrant are covered by directors' and
officers' insurance policies relating to Textron Inc. and its subsidiaries.
Any underwriters, dealers or agents referred to in the Prospectus contained
in this Registration Statement will agree to indemnify the registrant's
directors and its officers who signed the Registration Statement against certain
liabilities which might arise under the Securities Act of 1933 from information
furnished to the registrant by or on behalf of any such indemnifying party.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF INSTRUMENT
----------------------------------------------------------------------------
<C> <S>
*1(a) --Form of Underwriting Agreement.
*4(a) --Avco Financial Services, Inc. Standard Multiple-Series Indenture
Provisions dated May 11, 1984.
+4(b) --Form of Indenture to be dated as of October 15, 1994 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 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-1
<PAGE> 11
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF INSTRUMENT
----------------------------------------------------------------------------
<C> <S>
**4(k) --Form of Warrant Agreement(s) to be entered into between the Company and
one or more banking institutions organized under the laws of the United
States of America or any State thereof, as Warrant Agent.
+5 --Opinion and consent of Herbert F. Smith, Esq., General Counsel for the
Company.
***12(a) --Statement of Computation of Number of Times Fixed Charges Earned for the
five years ended December 31, 1993.
****12(b) --Statement of Computation of Number of Times Fixed Charges Earned for six
months ended June 30, 1994.
+23 --Consent of Ernst & Young LLP. The Consent of Herbert F. Smith, Esq. is
included in his opinion referred to in Exhibit 5 above.
+24 --Powers of Attorney.
</TABLE>
- ------------
* Incorporated by reference to the Company's Registration Statement No.
2-91039.
** Incorporated by reference to the Company's Registration Statement No.
33-2375.
*** Incorporated by reference to the Company's Annual Report on Form 10-K for
the year ended December 31, 1993 (File No. 0-6119).
**** Incorporated by reference to the Company's Current Report on Form 10-Q
dated June 30, 1994 (File No. 0-6119).
+ Filed herewith.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(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 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in this registration statement
shall be deemed to be a new
II-2
<PAGE> 12
registration statement relating to the securities 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 Securities Act
of 1933 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 against the registrant by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in such Act and will be governed by the final adjudication of such
issue.
II-3
<PAGE> 13
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF IRVINE, STATE OF CALIFORNIA, ON THE 7TH DAY OF
OCTOBER, 1994.
AVCO FINANCIAL SERVICES,
INC.
By /s/ HERBERT F. SMITH
TITLE: SENIOR VICE PRESIDENT
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON THE 7TH DAY OF OCTOBER, 1994.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------ ----------------------------
<C> <S>
President and Director
............................ (Principal Executive
(WARREN R. LYONS) Officer)
* Executive Vice President,
............................ Treasurer and Director
(RONALD BUKOW) (Principal Financial
Officer)
* Executive Vice President,
............................ Controller and Director
(GARY L. FITE) (Principal Accounting
Officer)
* Director
............................
(L. B. CAMPBELL)
Director
............................
(GAYLORD E. FRANCIS)
Director
............................
(JAMES F. HARDYMON)
Director
............................
(T. P. HOLLOWELL)
* Director
............................
(R. A. MCWHIRTER)
Director
............................
(WILLIAM J. PEARSON)
Director
............................
(EUGENE R. SCHUTT, JR.)
</TABLE>
II-4
<PAGE> 14
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------ ----------------------------
<C> <S>
* Director
............................
(HERBERT F. SMITH)
* Director
............................
(THOMAS D. SOUTTER)
* Director
............................
(JOHN C. SPENCE)
* Director
............................
(R. A. WATSON)
</TABLE>
*By /s/ HERBERT F. SMITH
(HERBERT F. SMITH, ATTORNEY-IN-FACT)
(DIRECTOR)
II-5
<PAGE> 15
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER EXHIBIT PAGE
- ----------- -----------------------------------------------------------------------------
<C> <S> <C>
*1(a) --Form of Underwriting Agreement..................................
*4(a) --Avco Financial Services, Inc. Standard Multiple-Series Indenture
Provisions dated May 11, 1984. ...................................
+4(b) --Form of Indenture to be dated as of October 15, 1994 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 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(k) --Form of Warrant Agreement(s) to be entered into between the
Company and one or more banking institutions organized under the
laws of the United States of America or any State thereof, as
Warrant Agent. .................................................
+5 --Opinion and consent of Herbert F. Smith, Esq., General Counsel
for the Company. .................................................
***12(a) --Statement of Computation of Number of Times Fixed Charges Earned
for the five years ended December 31, 1993. ......................
****12(b) --Statement of Computation of Number of Times Fixed Charges Earned
for six months ended June 30, 1994. ..............................
+23 --Consent of Ernst & Young LLP. The Consent of Herbert F. Smith,
Esq. is included in his opinion referred to in Exhibit 5
above. .........................................................
+24 --Powers of Attorney.
</TABLE>
- ------------
* Incorporated by reference to the Company's Registration Statement No.
2-91039.
** Incorporated by reference to the Company's Registration Statement No.
33-2375.
*** Incorporated by reference to the Company's Annual Report on Form 10-K for
the year ended December 31, 1993 (File No. 0-6119).
**** Incorporated by reference to the Company's Current Report on Form 10-Q
dated June 30, 1994 (File No. 0-6119).
+ Filed herewith.
II-6
<PAGE> 1
Exhibit 4(b)
==================================================================
AVCO FINANCIAL SERVICES, INC.
AND
[ ]
Trustee
___________________
INDENTURE
___________________
Dated as of October 15, 1994
___________________
SENIOR DEBT SECURITIES
=================================================================
<PAGE> 2
INDENTURE, dated as of October 15, 1994, between AVCO FINANCIAL
SERVICES, INC., a Delaware corporation, having its principal office at 3349
Michelson Drive, Irvine, California 92715-1606 (the "Company"), and
, as Trustee,
having its principal
corporate trust office at
(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:
I. INCORPORATION BY REFERENCE
Except as otherwise provided herein, Articles One through Twelve,
other than clause (ii) of Section 11.02(d), of the Avco Financial Services,
Inc. Standard Multiple-Series Indenture Provisions dated, and filed with the
Securities and Exchange Commission on, May 11, 1984 (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
II. ADDITIONAL PROVISIONS
Each of the following provisions, which constitutes part of this
Indenture, is numbered to conform with the format of the Standard Provisions:
A. Section 1.01 of the Standard Provisions is amended (i) to add
to the definition of "Trust Indenture Act" the phrase ", as amended by the
Trust Indenture Reform Act of 1990 and" after the date "1939" in the first line
of such definition; (ii) to add to the definition of "Officers' Certificate"
the word "or" after the word "President" in the second line of such definition
and to add the phrase "and by its" after the word "Presidents" in the third
line of such definition; (iii) to add to the definition of "Outstanding" the
phrase "and in the required currency or currency unit" after the word "amount"
in the second line of paragraph (b) of such definition; (iv) to add to the
definition of "Redemption Price" the phrase ", in the currency or currency unit
in which such Security is denominated or which is otherwise provided for
pursuant to this Indenture," after the word "price" in the second line of such
definition; (v) to amend the definition of "Business Day" to read in its
entirety as follows:
""Business Day", when used with the name of a city means 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."
and (vi) to add new definitions thereto, in the appropriate alphabetical
sequence, as follows:
"Component Currency": See Section 3.13(h) hereof.
"Conversion Date": See Section 3.13(d) hereof.
"Conversion Event" means the cessation of (i) the use of a Foreign
Currency by the government of the country which issued such currency and which
is used for the settlement of transactions by public institutions of or within
the international banking community, (ii) the use of the ECU both within the
European Monetary System and which is used for the settlement of transactions
by public institutions of or within the European Communities or (iii) the use
of any currency unit (other than the ECU) for the purposes for which it was
established.
"Currency Determination Agent" means the New York Clearing House
Bank, if any, from time to time selected by the Trustee for purposes of Section
3.13.
-2-
<PAGE> 4
"Depositary" shall mean, unless otherwise specified by the Company
pursuant to either Section 2.03 or 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" means the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
"Dollar Equivalent of the Currency Unit": See Section 3.13(g) hereof.
"Dollar Equivalent of the Foreign Currency": See Section 3.13(f)
hereof.
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"Election Date": See Section 3.13(h) hereof.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
"Exchange Rate Officer's Certificate" means a telex or a certificate
setting forth (i) the applicable Market Exchange Rate and (ii) the Dollar,
Foreign Currency or currency unit amounts of principal, premium, if any, and
interest, if any, respectively (on an aggregate basis and on the basis of a
Security having the lowest denomination principal amount pursuant to Section
3.02 in the relevant currency or currency unit), payable on the basis of such
Market 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.
"Foreign Currency" means a currency issued by the government of any
country other than the United States.
"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 in the name of the Depositary or its
nominee.
-3-
<PAGE> 5
"Market Exchange Rate" means (i) for any conversion involving a
currency unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant currency unit and Dollars or such
Foreign Currency calculated by the method specified pursuant to Section 3.01
for the securities of the relevant series, (ii) for any conversion of Dollars
into any Foreign Currency the noon buying rate in the City of New York for
cable transfers in such Foreign Currency as announced by the Federal Reserve
Bank of New York for customs purposes and (iii) for any conversion of one
Foreign Currency into Dollars or another Foreign Currency, the spot rate at
noon local time in the relevant market at which, in accordance with normal
banking procedures, the Dollars or Foreign Currency into which conversion is
being made could be purchased with the Foreign Currency from which conversion
is being made from major banks located in either New York, London or any other
principal market for Dollars or such purchased Foreign Currency. In the event
of the unavailability of any of the exchange rates provided for in the
foregoing clauses (i), (ii) and (iii) the Currency Determination Agent, if any,
or, if there shall not be a Currency Determination Agent, then the Trustee,
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,
London or other principal market for such currency or currency unit in
question, or such other quotations as the Currency Determination Agent, or the
Trustee, as the case may be, shall deem appropriate. Unless otherwise
specified by the Currency Determination Agent, if any, or, if there shall not
be a Currency Determination Agent, then by the Trustee, if there is more than
one market for dealing in any currency or currency unit by reason of foreign
exchange regulations or otherwise, the market to be used in respect of such
currency or currency unit shall be that upon which a nonresident issuer of
securities designated in such currency or currency unit would purchase such
currency or currency unit in order to make payments in respect of such
securities.
"Required Currency": See Section 3.14 hereof.
"Specified Amount": See Section 3.13(h) hereof.
"Valuation Date": See Section 3.13(c) hereof.
B. Section 1.02 of the Standard Provisions is amended to add to such section
(i) the parenthetical phrase "(including any covenants compliance
with which constitutes a condition precedent)" following the words
"precedent" in each of the fourth and sixth lines, respectively, of
the first paragraph of such section; and
-4-
<PAGE> 6
(ii) the parenthetical phrase "(other than annual certificates
provided pursuant to Section 12.06)" following the word "Indenture"
in the second line of the second paragraph of such section.
C. Section 1.04(a) of the Standard Provisions is amended to add
the following language at the end thereof:
"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 Section 9.01 of this Indenture prior to such
solicitation. If a 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."
D. Section 1.08 of the Standard Provisions is amended in its
entirety to read as follows:
"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."
E. Section 2.01 of the Standard Provisions is amended to add the
words "or forms" after the word "form" in the first sentence of such Section.
F. Article Two of the Standard Provisions is amended to add a new
Section 2.03, which reads in its entirety as follows:
SECTION 2.03. Securities Issuable in the Form of a Global Security.
(a) If the Company shall establish pursuant to Section 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
-5-
<PAGE> 7
accordance with Section 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 nominee, (iii) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instructions 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 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 Section 2.03
or of Section 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 Section 3.05, only to 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, asamended, 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 Section 3.01(m) 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
-6-
<PAGE> 8
definitive form in 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 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 such Global Security or
Securities representing such series, in exchange for such Global Security
or Securities.
(iii) If specified by the Company pursuant to Section 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 denomination as requested by such Person in aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the Global Security; and (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 the
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 Securities in definitive form 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 Section shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
-7-
<PAGE> 9
instruct the Trustee. The Trustee shall make available such Securities to
the persons in whose names such Securities are so registered.
G. Section 3.01 of the Standard Provisions is amended (i) to add
Section 2.03 to the sections referred to in the parenthetical exception to
paragraph (b) of Section 3.01; (ii) to add the phrase ", in the currency or
currency unit in which the Securities of such series are payable," after the
word "prices" in the fourth line of paragraph (g); (iii) to delete the symbol
"$" before the number "1000" in the first line of paragraph (h); (iv) to add
the phrase ", in the currency or currency unit in which the Securities of such
series are denominated" after the word "thereof" in the second line of
paragraph (h); (v) to delete the word "and" from the end of paragraph (l); (vi)
to redesignate paragraph (m) as paragraph (q); and (vii) to add new paragraphs
(m), (n), (o) and (p) as follows:
"(m) 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 exchanged in whole or in part for other individual Securities; and the
Depositary for such Global Security or Securities;
(n) if other than Dollars, the coin or currency or currency
unit in which payment of the principal of (and premium, if any) and
interest on the Securities of the series shall be made or in which the
Securities of the series shall be denominated and the particular
provisions applicable thereto in addition to or in lieu of the provisions
of Section 3.13;
(o) if the principal of (and premium, if any) or interest on
the Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a coin or currency or currency unit other
than that in which the Securities are denominated or stated to be payable,
in addition to or in lieu of the provisions of Section 3.13, the period or
periods within which, and the terms and conditions upon which, such
election may be made, and the time and manner of determining the exchange
rate between the currency or currency unit in which the Securities are
denominated and the currency or currency unit in which the Securities are
stated to be payable;
(p) if the amount of payments of principal of (and premium, if
any) or interest on the Securities of the series may be determined with
reference to an index based on a coin or currency or currencies other than
that in which the Securities are denominated or stated
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to be payable, the manner in which such amounts shall be determined;
and"
H. Section 3.02 of the Standard Provisions is amended to add the
phrase ", and shall be payable in Dollars" after the word "thereof" in the last
sentence of such Section.
I. Section 3.05 of the Standard Provisions is amended (i) to amend
and restate the first sentence to read as follows:
"Subject to Section 2.03, 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.";
and (ii) to add the following paragraph at the end of such Section:
"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 an account of Beneficial
Ownerships of interests of a Global Security or for maintaining,
supervising or reviewing any records relating to such Beneficial Ownership
interests."
J. Article Three of the Standard Provisions is amended to add new
Sections 3.13 and 3.14, which read in their entirety as follows:
Section 3.13. Currency and Manner of Payments in Respect of
Securities.
(a) With respect to Securities of any series not permitting the
election provided for in paragraph (b) below or the Holders of which have
not made the election provided for in paragraph (b) below, except as
provided in paragraph (d) below, payment of the principal of (and premium,
if any) and interest, if any, on any Security of such series will be made
in the currency or currency unit in which such Security is payable.
(b) It may be provided pursuant to Section 3.01 with respect to the
Securities of any series that Holders shall have the option, subject to
paragraphs (d) and (e) below, to receive payments of principal of (and
premium, if any) and interest, if any, on such Securities in any of the
currencies or currency units which may be designated for such election by
delivering to the Trustee a written election, to be in form and substance
satisfactory to the Trustee, in its sole discretion, not later than the
close of business on the
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Election Date immediately preceding the applicable payment date. If a
Holder so elects to receive such payments in any such currency or currency
unit, such election will remain in effect for such Holder until changed by
such Holder by written notice to the Trustee (but any such change must be
made not later than the close of business on the Election Date immediately
preceding the next payment date to be effective for the payment to be made
on such payment date and no such change or election 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 Election Date will be paid the amount due on
the applicable payment date in the relevant currency or currency unit as
provided in paragraph (a) of this Section 3.13.
(c) If the election referred to in paragraph (b) above has been
provided for pursuant to Section 3.01, then not later than the fourth
Business Day after the Election 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 (and 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 the Securities as to which
the Holders of Securities denominated in any currency or currency unit
shall have elected to be paid in another currency or currency unit as
provided in paragraph (b) above. If the election referred to in paragraph
(b) above has been provided for pursuant to Section 3.01 and if at least
one Holder has made such election, then, on the second Business Day
preceding each payment date the Company will deliver to the Trustee an
Exchange Rate Officer's Certificate in respect of the Dollar, Foreign
Currency or currency unit payments to be made on such payment date. The
Dollar, Foreign Currency or currency unit amount receivable by Holders of
Securities who have elected payment in a currency or currency unit as
provided in paragraph (b) above shall be determined by the Company on the
basis of the applicable Market Exchange Rate in effect on the third
Business Day (the "Valuation Date") immediately preceding each payment
date.
(d) If a Conversion Event occurs with respect to a Foreign
Currency, the ECU or any other currency unit in which any of the
Securities are denominated or
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payable other than pursuant to an election provided for pursuant to
paragraph (b) above then with respect to each date for the payment of
principal of (and 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, as the case may be, occurring after the last
date on which such Foreign Currency, the ECU or such other currency unit,
as the case may be, was used (the "Conversion Date"), the Dollar shall be
the currency of payment for use on each 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 Currency Determination Agent, if any, or, if there shall not be a
Currency Determination Agent, then by the Trustee, in the manner provided
in paragraphs (f) or (g) below.
(e) If the Holder of a Security denominated in any currency or
currency unit shall have elected to be paid in another currency or
currency unit as provided in paragraph (b) above, and a Conversion Event
occurs with respect to such elected currency or currency unit, such Holder
shall receive payment in the currency or currency unit in which payment
would have been made in the absence of such election. If a Conversion
Event occurs with respect to the currency or currency unit in which
payment would have been made in the absence of such election, such Holder
shall receive payment in Dollars as provided in paragraph (d) of this
Section 3.13.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Currency Determination Agent, if any, or, if there shall
not be a Currency Determination Agent, then by the Trustee, and shall be
obtained for each subsequent payment date by converting the specified
Foreign Currency into Dollars at the Market Exchange Rate on the
Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Currency Determination Agent, if any, or, if there shall
not be a Currency Determination Agent, then by the Trustee, and, subject
to the provisions of paragraph (h) below, shall be the sum of each amount
obtained by converting the Specified Amount of each Component Currency
into Dollars at the Market Exchange Rate for such Component Currency on
the Valuation Date with respect to each payment.
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<PAGE> 13
(h) For purposes of this Section 3.13 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 of such Component Currency or fractions thereof which were
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 amounts of such two or more
currencies, each of whose Dollar equivalent at the Market Exchange Rate on
the date of such replacement, shall be equal to the Dollar equivalent of
the Specified Amount of such former Component Currency at the Market
Exchange Rate on such date 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. If, after the Conversion Date of the relevant currency unit
(including, but not limited to, the ECU) a Conversion Event (other than
any event referred to above in this definition of "Specified Amount")
occurs with respect to any Component Currency of such currency unit, the
Specified Amount of such Component Currency shall, for purposes of
calculating the Dollar Equivalent of the Currency Unit, be converted into
Dollars at the Market Exchange Rate in effect on the Conversion Date of
such Component Currency.
"Election Date" shall mean the record date with respect to any
payment date and with respect to the Maturity shall mean the record date
(if within 16 or fewer days prior to the Maturity) immediately preceding
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<PAGE> 14
the Maturity and with respect to any series of Securities whose record
date immediately preceding the Maturity is more than 16 days prior to the
Maturity of any series of Securities for which no record dates are
provided with respect to interest payments, shall mean the date which is
16 days prior to the Maturity.
All decisions and determinations of the Trustee or the Currency
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 denominated or
payable in the relevant currency or currency units. In the event of a
Conversion Event with respect to a Foreign Currency, 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
Section 1.06 to the Holders) specifying the Conversion Date. In the event
of a Conversion Event with respect to the ECU or any other currency unit
in which Securities are denominated or payable, 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
Section 1.06 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 Currency Determination Agent, if
any, and shall not otherwise have any duty or obligation to determine such
information independently.
Section 3.14. Payment To Be in Proper Currency. In the case of any
Security denominated in any particular currency or currency unit (the
"Required Currency"), subject to applicable law and except as otherwise
provided herein, therein or in or pursuant to the related Board Resolution
or supplemental indenture, the obligation of the Company to make any
payment of principal, premium or interest thereon shall not be discharged
or satisfied by any tender by the Company, or recovery by the Trustee, in
any currency or currency unit other than the Required Currency, except to
the extent that such tender or recovery shall result in the Trustee's
timely holding the full amount of the Required Currency then due and
payable. If any such tender or
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<PAGE> 15
recovery is made in other than the Required Currency, the Trustee may take
such actions as it considers appropriate to exchange such other currency
or currency unit for the Required Currency. The costs and risks of any
such exchange, including, without limitation, the risks of delay and
exchange rate fluctuation, shall be borne solely by the Company, the
Company shall be liable for any shortfall or delinquency in the full
amount of the Required Currency then due and payable, and in no
circumstances shall the Trustee be liable therefor. The Company hereby
waives any defense of payment based upon any such tender or recovery which
is not in the Required Currency, or which, when exchanged for the Required
Currency by the Trustee, is less than the full amount of the Required
Currency then due and payable.
K. Section 4.03 of the Standard Provisions is amended (i) to
delete the symbol "$" before the number "1,000" in the ninth line of the first
paragraph; (ii) to add the phrase "in the currency or currency unit in which
the Securities of such series are denominated" after the number "1,000" in the
ninth line of the first paragraph; and (iii) to amend and restate the last
sentence of the first paragraph to read as follows:
"The portions of the principal amount of Securities so selected for
partial redemption shall be equal to 1,000 in the currency or
currency unit in which the Securities of such series are denominated
or any integral multiple thereof, except as otherwise set forth in
the applicable form of Securities."
L. Section 4.05 of the Standard Provisions is amended to read in
its entirety as follows:
"At least one Business Day prior to any Redemption Date with respect
to the Securities of any series, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided Section
12.03 hereof) an amount of money in the currency or currency unit in
which the Securities of such series are payable (except as otherwise
specified pursuant to Section 3.01 for the Securities of such series
and except as provided in Section Section 3.13(b), 3.13(d) and
3.13(e) hereof) sufficient to pay the Redemption Price of, and
accrued interest, if any, on, all Securities or portions thereof
which are to be redeemed on the Redemption Date."
M. Section 4.06 of the Standard Provisions is amended to add the
phrase "in the currency or currency unit in which the Securities of such Series
are payable (except as otherwise
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specified pursuant to Section 3.01 for the Securities of such series and
except as provided in Section Section 3.13(b), 3.13(d) and 3.13(e)
hereof)" after the word "Date" in the fourth line of the first paragraph
of such Section.
N. Section 5.03 of the Standard Provisions is amended (i) to add
the phrase "in the currency or currency unit in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 3.01 for
the Securities of such series and except as provided in Section Section
3.13(b), 3.13(d) and 3.13(e) hereof)" after the word "cash" in the sixth line
of the first paragraph; (ii) to add the parenthetical phrase "(in the currency
or currency unit described above)" (x) after the word "payments" in the
fourteenth line of the first paragraph, (y) after the word "cash" in the
eighteenth line of the first paragraph, and (z) after the word "cash" in the
second line of the second paragraph; (iii) to add the phrase ", or its
equivalent in the currency or currency unit described above" after the number
"$100,000" in the third line of the second paragraph; (iv) to add the
parenthetical phrase "(in the currency or currency unit described in the first
paragraph of this Section 5.03)" (x) after the word "money" in the second line
of the fourth paragraph, (y) after the word "cash" in the ninth line of the
fifth paragraph, and (2) after the word "moneys" in each of the eleventh,
thirteenth, seventeenth, and eighteenth lines, respectively, of the fifth
paragraph of such Section; and (v) to add the following sentence at the end of
the second paragraph:
"The Trustee shall not convert any currency or currency unit in which
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."
O. Section 6.01 of the Standard Provisions is amended (i) to add
the phrase "in the currency or currency unit in which the Securities of such
Series are denominated (except as otherwise specified pursuant to Section 3.01
for the Securities of such series and except as provided in Section Section
3.13(b), 3.13(d) and 3.13(e) hereof)" after the word "amount" in the second
line after paragraph (a)(ii)(C) of such Section; (ii) to add the phrase "and
the obligations of the Company contained in Section 3.13(c) to deliver the
Exchange Rate Officer's Certificate" after the word "hereof" in the third line
of the last sentence of such Section; and (iii) to add the following language
at the end of such Section:
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"Notwithstanding the satisfaction of the conditions set forth in this
Section 6.01 with respect to all the Securities of any series not
denominated in Dollars, upon the happening of any Conversion Event
the Company shall be obligated to make the payments in Dollars
required by Section 3.13(d) to the extent that the Trustee is unable
to convert any Foreign Currency or currency unit in its possession
pursuant to Section 6.01(a) into the Dollar Equivalent of the Foreign
Currency or the Dollar Equivalent of the Currency Unit, as the case
may be. The Trustee shall return to the Company any non- converted
funds or securities in its possession after such payments have been
made."
P. Section 7.02 of the Standard Provisions is amended to add the
phrase "in the currency or currency unit in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 3.01 for the
Securities of such series and except as provided in Section Section 3.13(b),
3.13(d) and 3.13(e) and 8.07 hereof)" after the word "pay" in the second line
of paragraph (a) of such Section.
Q. Section 7.08 of the Standard Provisions is amended to add the
phrase ", in the currency or currency unit herein prescribed," after the word
"payment" in the third line of such Section.
R. Article Seven of the Standard Provisions is amended to add a
new Section 7.16, which reads in its entirety as follows:
SECTION 7.16 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, 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, then such conversion shall be
made at the Market Exchange 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
Market Exchange Rate and the Market Exchange Rate as in effect on the date
of payment, the Company agrees to pay such additional amounts (if any) as
may be necessary to ensure that the amount paid is the amount in such
other currency or currency unit which, when converted at the Market
Exchange Rate as in effect on the date of payment or distribution, is the
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amount then due hereunder or under such Security. Any amount due from the
Company under this Section 7.16 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. In no event, however,
shall the Company be required to pay more in the currency or currency unit
due hereunder or under such Security at the Market Exchange 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 so that in any event the
Company's obligations hereunder or under such Security will be effectively
maintained as obligations in such currency or currency unit, and the
Company shall be entitled to withhold (or be reimbursed for, as the case
may be) any excess of the amount actually realized upon any such
conversion over the amount due and payable on the date of payment or
distribution.
S. Section 8.06 of the Standard Provisions is amended to add the
phrase "Except as provided in Section 8.16," to the beginning of such Section.
T. Section 8.07 of the Standard Provisions is amended to add the
phrase "in Dollars" (i) after the word "compensation" in the second line of
paragraph (a); (ii) after the word "Trustee" in the second line of paragraph
(b); and (iii) after the word "Trustee" in the first line of paragraph (c) of
such Section.
U. Section 8.08 of the Standard Provisions is amended to read in
its entirety as follows:
"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 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."
V. Section 8.09 of the Standard Provisions is amended to read in
its entirety as follows:
"There shall at all times be a Trustee hereunder for each series of
Securities, which shall be at all times either
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(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
$25,000,000. 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 Section 8.09, 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 Section 8.09, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article Eight. 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."
W. Section 8.10(d)(i) of the Standard Provisions is amended to:
(i) delete the phrase "Subsection (a) of Section 8.08 hereof" after the
word "with" in the second line thereof and to add the phrase in
substitution for such deleted phrase "Section 310(b) of the Trust
Indenture Act"; and
(ii) to add immediately after the word "months" in the fifth line thereof
the phrase ", unless the Trustee's duty to resign is stayed in
accordance
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with the provisions of Section 310(b) of the Trust Indenture Act."
X. Section 8.13 of the Standard Provisions is hereby amended to:
(i) substitute the word "three" for the word "four" in the third
line of subsection (a) thereof;
(ii) substitute the word "three" for the word "four" in the third
line of subsection (a)(i) thereof;
(iii) substitute the word "three" for the word "four" in the third
line of subsection (a)(ii) thereof;
(iv) substitute the word "three" for the word "four" in the third
line of paragraph (2) thereof;
(v) substitute the word "three" for the word "four" in the fourth
and ninth lines, respectively, of paragraph (3) thereof;
(vi) substitute the word "three" for the word "four" in the second
line of the first full paragraph immediately after paragraph (4) thereof;
(vii) substitute the word "three" for the word "four" in the second
and sixth lines, respectively, of the first full paragraph on page 58 of
the Indenture; and
(viii) substitute the word "three" for the word "four" in
subparagraphs (i) and (ii) of the first full paragraph on page 58 of the
Indenture.
Y. Article Eight of the Standard Provisions is amended to add new
Sections 8.15 and 8.16, which read in their entirety as follows:
SECTION 8.15 Other Matters Concerning the Trustee.
(a) At the date of this Indenture, the Corporate Trust Office of
the Trustee is located at .
[(b) Anything in Section 12.02 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
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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 order of this Indenture is located at
New York, New York.]
Section 8.16. Moneys of Different Currencies To Be Segregated.
The Trustee shall segregate moneys, funds and accounts held by the
Trustee hereunder in one currency (or currency unit) from any moneys,
funds or accounts in any other currencies (or currency units),
notwithstanding any provision herein which would otherwise permit the
Trustee to commingle such amounts.
Z. Section 9.03(a) of the Standard Provisions is amended to:
(i) add the phrase "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)" immediately after the word "to" on the sixth line of
subsection (a) of Section 9.03;
(ii) add the phrase "any change to" immediately after (i) of Section
9.03(a)(i) and deleting the phrase "or in lieu thereof, if to the best of
its knowledge it has continued to be eligible and qualified under said
Section 8.08 and Section 8.09, a written statement to such effect";
(iii) add a new subsection (ii) thereto, which will read in its
entirety as follows:
"(ii) 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;"
(iv) change subsection number "(ii)" to "(iii)";
(v) change subsection numbers "(iii)" and "(iv)" to "(iv)" and
"(v)", respectively, and add the phrase "any change to" immediately after
such subsection numbers; and
(vi) change subsection numbers "(v)" and "(vi)" to "(vi)" and
"(vii)", respectively.
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AA. Article Nine of the Standard Provisions is amended to add a new
Section 9.05, which reads in its entirety as follows:
SECTION 9.05 Delivery of Reports by the Trustee. The date referred
to in Section 9.03 hereof, 60 days after which the Trustee is required to
transmit the reports referred to in such Section 9.03, shall be the first
May 15 which occurs not less than 60 days following the first date of
issuance of the Securities of any series under this Indenture.
AB. Section 11.02 of the Standard Provisions is amended to delete
the phrase "or the coin or currency" after the word "payment" in the fourth
line of paragraph (a) and to add the phrase in substitution for such deleted
phrase "or the currency or currency unit."
AC. Section 12.01 of the Standard Provisions is amended to add the
phrase ", in the currency or currency unit in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 3.01 for
the Securities of such series and except as provided in Section Section
3.13(b), 3.13(d) and 3.13(e) hereof)," after the word "pay" in the first line
of such Section.
AD. Section 12.03 of the Standard Provisions is amended (i) to add
the phrase ", in the currency or currency unit in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 3.01 for
the Securities of such series and except as provided in Section Section
3.13(b), 3.13(d) and 3.13(e) hereof)," after the word "sum" in the fourth line
of the first paragraph; and (ii) to add the parenthetical phrase "(in the
currency or currency unit described in the preceding paragraph)" after the word
"sum" in the fourth line of the second paragraph of such Section.
AE. Section 12.06(b) of the Standard Provisions is amended in its
entirety to read as follows:
"(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
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<PAGE> 23
regard to any grace period or requirement of notice provided pursuant to
the terms of this Indenture);"
IN WITNESS WHEREOF, AVCO FINANCIAL SERVICES, INC. has caused this
Indenture to be signed in its corporate name by its Chairman of the Board, its
President or a 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 , in evidence of its acceptance of the trust
hereby created, has caused this Indenture to be signed in its corporate name by
one of its authorized representatives, and its corporate seal to be affixed
hereunto, and the same to be attested by one of its Assistant Secretaries.
Executed and delivered as of the day and year first above written.
AVCO FINANCIAL SERVICES, INC.
By:_________________________________
Name:
Title:
[SEAL]
ATTEST:
By:____________________________
Name:
Title:
[ ]
By:_________________________________
Name:
Title:
[SEAL]
ATTEST:
By:____________________________
Name:
Title:
-22-
<PAGE> 24
STATE OF CALIFORNIA )
: ss.:
COUNTY OF ORANGE )
On the ___ day of ___________, 1994, before me personally came
_____________________, to me known, who being by me duly sworn, did depose and
say that he resides at ________________________________, that he is a
____________________ of AVCO FINANCIAL SERVICES, INC., one of the corporations
described in and which executed the above instrument; that he knows the seal of
said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by order of the Board of Directors of said
corporation, and that he signed his name thereto by like order.
_____________________________
Notary Public
My Commission Expires _____________
[SEAL]
COMMONWEALTH OF PENNSYLVANIA )
: ss.:
COUNTY OF ALLEGHENY )
On the ___ day of ___________, 1994, before me personally came
_____________________, to me known, who being by me duly sworn, did depose and
say that he resides at ________________________________, that he/she is an
_________________________ of ___________________, one of the corporations
described in and which executed the above instrument; that he/she knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of Directors of
said corporation, and that he/she signed his/her name thereto by like order.
_____________________________
Notary Public
My Commission Expires _____________
[SEAL]
-23-
<PAGE> 1
EXHIBIT 5
AVCO FINANCIAL SERVICES, INC.
3349 Michelson Drive
Irvine, CA 92715
October 7, 1994
Avco Financial Services, Inc.
3349 Michelson Drive
Irvine, California 92715
Gentlemen:
At your request, I have examined the registration statement on Form S-3
(the "Registration Statement") being filed by you with the Securities and
Exchange Commission in connection with the registration under the Securities Act
of 1933 of $1,500,000,000 of Debt Securities and Warrants to Purchase Debt
Securities (the "Warrants") to be offered on a continuous or delayed basis
pursuant to the provisions of Rule 415. I have examined the form of Warrant
Agreement(s) (the "Warrant Agreement") under which the Warrants may be issued,
being filed or incorporated by reference in the Registration Statement. I am
familiar with the additional proceedings proposed to be taken by you in
connection with the authorization, registration, issuance and sale of the
Securities and Warrants.
I am of the opinion that:
(1) When the issuance of the Securities has been duly authorized by
appropriate corporate action and such Securities have been duly
executed, authenticated and delivered in accordance with the
indenture to be executed in substantially the form filed as an
exhibit to the Registration Statement pursuant to which such
Securities are to be issued and sold as described in the
Registration Statement, including the Prospectus and Prospectus
Supplement relating to such Securities, such Securities will be
legal, valid and binding obligations of the Company entitled to
the benefits of the applicable Indenture; and
(2) When any Warrant Agreement has been duly executed and delivered
and the Warrants authorized by appropriate corporate action in
accordance with such Warrant Agreement and sold as described in
the Registration Statement, including the Prospectus and
Prospectus Supplement relating to such Warrants, such Warrants
will be legal, valid and binding obligations of the Company
entitled to the benefits of such Warrant Agreement.
The foregoing opinion is subject to all bankruptcy, insolvency,
reorganization, moratorium or similar laws, or equitable principles relating to
or limiting creditors' rights generally.
I consent to the use of this opinion as an exhibit to the Registration
Statement and to the reference to me in the Prospectus which is part of the
Registration Statement.
Respectfully submitted,
/s/ HERBERT F. SMITH
Herbert F. Smith
General Counsel
HFS/jab
<PAGE> 1
EXHIBIT 23
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Legal and Audit
Opinions" in the Registration Statement (Form S-3) and related Prospectus of
Avco Financial Services, Inc. for the registration of $1,500,000,000 principal
amount of Debt Securities and Warrants to purchase Debt Securities and to the
incorporation by reference therein of our report dated February 3, 1994, with
respect to the consolidated financial statements and schedules of Avco Financial
Services, Inc. included in its Annual Report (Form 10-K) for the year ended
December 31, 1993, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Orange County, California
October 7, 1994
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each of the undersigned, an officer or
director, or both of AVCO FINANCIAL SERVICES, INC., a Delaware corporation, does
hereby constitute and appoint LAILA B. SOARES and HERBERT F. SMITH and each of
them severally, with full power of substitution to each of said attorneys, as
the true and lawful attorneys and agents of the undersigned, to do any and all
acts and things and to execute any and all instruments which said attorneys and
agents, or either of them acting alone, deem advisable, of AVCO FINANCIAL
SERVICES, INC. to comply with the Securities Act of 1933, as amended, and any
requirements of the Securities and Exchange Commission with respect thereto in
connection with the filing under the Securities Act of 1933 of a Registration
Statement or Statements covering up to $1,500,000,000 principal amount of Debt
Securities and Warrants to purchase Debt Securities of this corporation, as well
as any and all amendments to said Registration Statement, including
specifically, but without limitation of the authority hereby granted, the power
and authority to sign his name as an officer or director, or both, of AVCO
FINANCIAL SERVICES, INC., as indicated below his signature, to said Registration
Statement or Statements and any such amendments, and each of the undersigned
does fully ratify and confirm all that said attorneys, or either of them, or the
substitute of either of them, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has subscribed these presents
this 7th day of October, 1994.
<TABLE>
<S> <C>
/s/ GARY L. /s/ RONALD BUKOW
FITE RONALD BUKOW
GARY L. FITE Executive Vice President and
Executive Vice President, Chief Financial Officer
Controller and Director
(Principal Accounting Officer)
/s/ JOHN C. SPENCE /s/ HERBERT F. SMITH
JOHN C. SPENCE HERBERT F. SMITH
Director Senior Vice President
Secretary and Director
(General Counsel)
/s/ L. B. /s/ R. A. MCWHIRTER
CAMPBELL R. A. MCWHIRTER
L. B. CAMPBELL Director
Director
/s/ THOMAS D. SOUTTER /s/ R. A. WATSON
THOMAS D. SOUTTER R. A. WATSON
Director Director
</TABLE>
