<PAGE> 1
As filed with the Securities and Exchange Commission on November 26, 1997
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
AMERICAN ANNUITY GROUP, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 06-1356481
(State or other jurisdiction (I.R.S. Employer Identification
of incorporation or organization) Number)
250 EAST FIFTH STREET
CINCINNATI, OHIO 45202
(513) 333-5300
(Address, including zip code, and
telephone number, including area
code, of Registrant's principal
executive offices)
AAG HOLDING COMPANY, INC.
(Exact name of Registrant as specified in its charter)
OHIO 31-1475936
(State or other jurisdiction (I.R.S. Employer Identification
of incorporation or organization) Number)
250 EAST FIFTH STREET
CINCINNATI, OHIO 45202
(513) 333-5300
(Address, including zip code, and
telephone number, including area
code, of Registrant's principal
executive offices)
-------------
MARK F. MUETHING, ESQ. WITH COPIES TO:
SENIOR VICE PRESIDENT, GENERAL COUNSEL PAUL V. MUETHING, ESQ.
& SECRETARY KEATING, MUETHING & KLEKAMP
AMERICAN ANNUITY GROUP, INC. 1800 PROVIDENT TOWER
250 EAST FIFTH STREET CINCINNATI, OHIO 45202
CINCINNATI, OHIO 45202 (513) 579-6517
(513) 333-5300
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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 and other factors.
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 of the Securities Act of 1933,
other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [ X ]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
-----
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
-----
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.[ ]
(Cover continued on next page)
<PAGE> 2
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=====================================================================================================================
Title of each Class of Proposed Maximum Proposed Maximum Amount of
Securities to be Amount to be Aggregate Offering Aggregate Offering Registration
Registered Registered (1) Price Per Security(2) Price (2) Fee
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities of AAG $150,000,000 100% $150,000,000 $45,455
Holding Company, Inc.
Guarantee of Debt
Securities of AAG
Holding Company, Inc.
by American Annuity
Group, Inc.(3)
=====================================================================================================================
Total $150,000,000 100% $150,000,000 $45,455
=====================================================================================================================
</TABLE>
(1) Such indeterminate number or amount of Debt Securities of AAG Holding
Company, Inc. may from time to time be issued at indeterminate prices. The
amount registered is in United States dollars or the equivalent thereof in
any other currency, currency unit or units, or composite currency or
currencies.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457. The aggregate offering price of the Debt Securities
registered hereby will not exceed $150,000,000.
(3) No separate consideration will be received for the American Annuity Group,
Inc. Guarantee.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
================================================================================
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<PAGE> 3
SUBJECT TO COMPLETION, DATED NOVEMBER 25, 1997
PROSPECTUS
$150,000,000
AAG HOLDING COMPANY, INC.
DEBT SECURITIES
GUARANTEED BY AMERICAN ANNUITY GROUP, INC.
AAG Holding Company, Inc. ("AAG Holding" or the "Company") may from
time to time offer, together or separately, in one or more series, unsecured
debt securities which may be either senior or subordinated debt securities
(together, the "Debt Securities"), consisting of debentures, notes and/or other
evidences of indebtedness in amounts, at prices and on terms to be determined at
the time of the offering of such Debt Securities. All such Debt Securities will
be guaranteed by American Annuity Group, Inc. ("AAG"), which owns 100% of the
outstanding Common Stock of AAG Holding.
The Debt Securities may be offered as separate series or issuances at
an aggregate initial public offering price not to exceed $150,000,000 or, if
applicable, the equivalent thereof in one or more foreign currencies or in
amounts determined by reference to an index as shall be designated by the
Company. The amount of the various Debt Securities to be offered, as well as the
prices and terms of issuance, will be determined in light of market conditions
at the time of sale.
Specific terms of the particular Debt Securities covered by this
Prospectus will be set forth in a Prospectus Supplement which will describe,
where applicable, the specific designation, aggregate principal amount, ranking
as senior or subordinated debt securities, denominations, maturity, any interest
rate and method of calculating payment of any interest, dates on which any
premium or any interest is payable, any terms for redemption, any terms for
sinking fund payments, any terms for conversion or exchange into other
securities, any right of AAG Holding to defer payment of interest on the Debt
Securities, and the maximum length of such deferral period, subordination terms,
currency or currencies of denomination and payment (if other than U.S. dollars),
the purchase price, any listing on a securities exchange and any other terms in
connection with the offering and sale of the Debt Securities relating to the
delivery of this Prospectus. The Debt Securities may be issued in registered or
bearer form, or both. If so specified in the applicable Prospectus Supplement,
Debt Securities may be issued in whole or in part in the form of one or more
temporary or permanent global securities.
The Debt Securities may be sold by the Company directly, or to or
through underwriters or through dealers or agents. See "Plan of Distribution."
The names of any underwriters, dealers or agents involved in the sale of the
Debt Securities relating to the delivery of this Prospectus and any applicable
fee, commission or discount arrangements with them will be set forth in the
applicable Prospectus Supplement. See "Plan of Distribution" for possible
indemnification arrangements for dealers, underwriters and agents.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES
OF DEBT SECURITIES UNLESS ACCOMPANIED BY A
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.
------------
The date of this Prospectus is , 1997.
<PAGE> 4
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, ANY ACCOMPANYING
PROSPECTUS SUPPLEMENT OR THE DOCUMENTS INCORPORATED OR DEEMED INCORPORATED BY
REFERENCE HEREIN, AND ANY INFORMATION OR REPRESENTATIONS NOT CONTAINED HEREIN OR
THEREIN MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY, AAG OR
BY ANY AGENT, DEALER OR UNDERWRITER. THIS PROSPECTUS AND ANY ACCOMPANYING
PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY THE DEBT SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR
SOLICITATION IS UNLAWFUL. THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS
SUPPLEMENT AT ANY TIME DOES NOT IMPLY THAT THE INFORMATION HEREIN OR THEREIN IS
CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE OF SUCH INFORMATION.
AVAILABLE INFORMATION
AAG is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act"), and in accordance therewith files
periodic reports, proxy and information statements and other information with
the Securities and Exchange Commission (the "Commission"). The Company and AAG
have filed a Registration Statement on Form S-3 (the "Registration Statement")
with the Commission under the Securities Act of 1933 (the "Securities Act") with
respect to the Debt Securities. This Prospectus does not contain all the
information, exhibits and undertakings contained in the Registration Statement,
to which reference is hereby made. Statements contained in this Prospectus as to
the terms of any contract or other document are not necessarily complete with
respect to each such contract, agreement or other document filed as an exhibit
to the Registration Statement. Reference is made to the exhibits for a more
complete description of the matter involved. Such reports, proxy and information
statements, the Registration Statement and other information filed with the
Commission by AAG may be inspected at and obtained from the Commission at its
public reference facilities at 450 Fifth Street, N.W., Washington, D.C. 20549,
and at the Commission's regional offices located at Suite 1400, 500 West Madison
Avenue, Chicago, Illinois, and at 7 World Trade Center, 13th Floor, New York,
New York. Copies of such material can also be obtained at prescribed rates by
mail from the Public Reference Section of the Commission at its Washington, D.C.
address set forth above. Such material may also be accessed electronically by
means of the Commission's home page on the World Wide Web located at
http://www.sec.gov. In addition, material filed by AAG can be obtained and
inspected at the offices of the New York Stock Exchange, Inc., 20 Broad Street,
New York, New York 10005 (the "NYSE"), on which AAG's Common Stock is listed.
No separate financial statements of AAG Holding have been included and
none are incorporated by reference herein. AAG does not believe that such
financial statements would be material to prospective purchasers of Debt
Securities because (i) all of the Common Stock of AAG Holding is owned, directly
or indirectly, by AAG, a reporting company under the Exchange Act, and (ii) the
obligations of AAG Holding under the Debt Securities will be fully and
unconditionally guaranteed by AAG. See "Description of Debt
Securities--Guarantee of Debt Securities."
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<PAGE> 5
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
This Prospectus incorporates by reference certain documents relating to
AAG which are not delivered herewith. These documents (other than the exhibits
to such documents, unless such exhibits are specifically incorporated by
reference into such documents) are available, without charge, on oral or written
request by any person to whom this Prospectus is delivered. Written or telephone
requests should be directed to Mark F. Muething, Senior Vice President, General
Counsel and Secretary, 250 East Fifth Street, Cincinnati, Ohio 45202, telephone
(513) 333-5515. The following documents, which have been filed by AAG (File No.
1-11632) with the Commission, are hereby incorporated by reference in this
Prospectus:
(i) Annual Report on Form 10-K for the year ended December 31, 1996; and
(ii) Quarterly Reports on Form 10-Q for the quarters ended March 31, 1997,
June 30, 1997 and September 30, 1997.
All documents subsequently filed by AAG pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the termination of this Offering
shall be deemed to be incorporated by reference in this Prospectus and to be a
part of this Prospectus from the date of filing thereof.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
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<PAGE> 6
PROSPECTUS SUMMARY
This summary is qualified by the more detailed information and
financial statements appearing elsewhere, or incorporated by reference, in this
Prospectus.
AMERICAN ANNUITY GROUP, INC.
American Annuity Group, Inc. ("AAG") is a holding company which,
through its subsidiaries, is engaged principally in the sale of tax-deferred
annuities and life and health insurance. AAG's primary operating subsidiary is
Great American Life Insurance Company ("GALIC"). GALIC sells annuities to
employees of qualified not-for-profit organizations under Section 403(b) of the
Internal Revenue Code. GALIC also sells annuities in the non-qualified market.
AAG acquired GALIC in December 1992. At December 31, 1996, GALIC had statutory
assets in excess of $5.69 billion, representing a 29% compounded annual growth
in assets since 1976.
GALIC has several life insurance subsidiaries including (i) American
Memorial Life Insurance Company ("American Memorial"), which markets individual
life insurance and annuity policies with the sponsorship of state associations
of funeral directors as well as individual funeral directors across the country,
(ii) Annuity Investors Life Insurance Company ("AILIC"), which markets group and
individual variable annuities, and (iii) Loyal American Life Insurance Company
("Loyal"), which specializes in life and health insurance sold through payroll
deduction plans and credit unions.
American Financial Group, Inc. and its subsidiaries ("AFG")
collectively own approximately 81% of AAG's outstanding Common Stock.
AAG HOLDING COMPANY, INC.
AAG Holding Company, Inc. ("AAG Holding" or the "Company") is a
wholly-owned subsidiary of AAG that owns all of the stock of GALIC. All Debt
Securities will be issued by AAG Holding and guaranteed by AAG.
USE OF PROCEEDS
Unless otherwise indicated in the accompanying Prospectus Supplement,
the net proceeds received by the Company from the sale of any Debt Securities
offered hereby are expected to be used for general corporate purposes, which may
include investment in insurance businesses and the repayment of outstanding debt
of the Company, AAG and their subsidiaries. Until the net proceeds are used for
these purposes, the Company may deposit them in interest-bearing accounts or
invest them in marketable securities. The specific allocations, if any, of the
proceeds of any of the Debt Securities will be described in the Prospectus
Supplement relating thereto.
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<PAGE> 7
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the historical ratios of earnings to
fixed charges for AAG and its subsidiaries, including the Company. Fixed charges
are computed on a "total enterprise" basis. For purposes of calculating the
ratios, "earnings" have been computed by adding to pretax earnings from
continuing operations the fixed charges and minority interest in earnings of
subsidiaries having fixed charges and deducting (adding) the undistributed
equity in earnings (losses) of investees. Fixed charges include interest
(excluding annuity benefits), amortization of debt issue expense, preferred
dividend requirements of AAG and its subsidiaries and a portion of rental
expense deemed to represent the interest factor.
<TABLE>
<CAPTION>
Nine Months
Ended
September 30, Year Ended December 31,
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1997 1996 1996 1995 1994 1993
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Historical ratio of
earnings to fixed charges.......... 4.7 6.1 5.4 6.0 3.8 3.8
</TABLE>
DESCRIPTION OF DEBT SECURITIES
GENERAL
The following description of the Debt Securities sets forth certain
general terms and provisions of the Debt Securities to which any Prospectus
Supplement may relate. The particular terms of the Debt Securities offered by
any Prospectus Supplement and the extent, if any, to which such general
provisions do not apply to those Debt Securities will be described in the
Prospectus Supplement relating to such Debt Securities.
The Debt Securities will be general unsecured obligations of the
Company and will constitute either senior debt securities or subordinated debt
securities. All Debt Securities will be fully and unconditionally guaranteed by
AAG. See "Guarantee of Debt Securities." In the case of Debt Securities that
will be senior debt securities ("Senior Debt Securities"), the Senior Debt
Securities will be issued under an Indenture (the "Senior Indenture") to be
executed among the Company, American Annuity Group, Inc., as Guarantor and Star
Bank, N.A., as trustee (the "Senior Debt Trustee"). In the case of Debt
Securities that will be subordinated debt securities ("Subordinated Debt
Securities"), the Subordinated Debt Securities will be issued under an Indenture
(the "Subordinated Indenture") to be executed among the Company, American
Annuity Group, Inc., as Guarantor and Star Bank, N.A., as trustee (the
"Subordinated Debt Trustee"). The Senior Debt Trustee and the Subordinated Debt
Trustee are sometimes referred to herein individually as the "Trustee" or
collectively as the "Trustees." The Senior Indenture and the Subordinated
Indenture are sometimes referred to herein individually as the "Indenture" or
collectively as the "Indentures". The statements made under this caption
relating to the Debt Securities and the Indentures are summaries only, do not
purport to be complete, and are qualified in their entirety by reference to the
form of Indenture filed with the Commission in connection with the issuance of
any series of Debt Securities. Such summaries make use of terms defined in the
Indentures. Wherever such terms are used herein, such terms are incorporated by
reference from the Indentures as part of the statements made herein. Summaries
of certain terms used herein will be included in the Prospectus Supplement
relating to the issuance of any particular series of Debt Securities.
Except as may be set forth in the terms of the Debt Securities and
described in the Prospectus Supplement relating to such Debt Securities, the
Indentures do not limit the amount of Debt Securities which can be issued
thereunder and provide that additional Debt Securities may be issued thereunder
up to the aggregate principal amount which may be authorized from time to time
by the Company's Board of Directors. Reference is made to the Prospectus
Supplement for the following terms of the particular series of Debt Securities
being offered thereby: (i) the title of the Debt Securities; (ii) the aggregate
principal amount and authorized denominations of the offering; (iii) the price
at which the Debt Securities will be issued; (iv) the date or dates on which the
Debt Securities will mature (or manner of determining the same); (v) the rate or
rates per annum, if any, at which the Debt Securities will bear interest (or the
manner of calculation
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<PAGE> 8
thereof) and the date or dates from which such interest will accrue; (vi)
certain covenants which will be applicable to the offered Debt Securities; (vii)
the times at which any interest will be payable (or manner of determining the
same) and the Regular Record Dates for Interest Payment Dates; (viii) the place
or places where the principal of (and premium, if any) and interest, if any, on
the Debt Securities will be payable and each office or agency, as described
below under "Denominations, Registration and Transfer," where the Debt
Securities may be presented for transfer or exchange; (ix) any mandatory or
optional sinking fund or analogous provisions; (x) the date, if any, after
which, and the price at which, such Debt Securities are payable pursuant to any
optional or mandatory redemption provisions; (xi) the terms and conditions upon
which the Debt Securities may be repayable prior to maturity at the option of
the holder thereof and the price at which such Debt Securities are so repayable;
(xii) any provisions regarding exchangeability or conversion of the Debt
Securities; (xiii) information with respect to book-entry procedures, if any;
(xiv) any provisions of the Indenture which will not be applicable to such
offering of Debt Securities; (xv) whether the Debt Securities are Senior Debt
Securities or Subordinated Debt Securities; and (xvi) any other additional
provisions or specific terms which may be applicable to such Debt Securities.
Some of the Debt Securities may be issued as discounted Debt Securities
(bearing no interest or interest at a rate which at the time of issuance is
below market rates) to be sold at a discount below their stated principal
amount. Federal income tax consequences and other special considerations
applicable to any Discounted Debt Securities will be described in the Prospectus
Supplement relating thereto.
Neither the Senior Indenture nor the Subordinated Indenture contain
provisions that afford the holders of the Senior Debt Securities or Subordinated
Debt Securities protection in the event of a highly leveraged transaction
involving the Company or other similar transaction that may adversely affect
such holders.
GUARANTEE OF DEBT SECURITIES
The Indentures provide that AAG will fully and unconditionally
guarantee the due and punctual payment of the principal and interest on the Debt
Securities when and as the same shall become due and payable, whether at
maturity, upon redemption or otherwise. Since AAG is a holding company, the
right of AAG and, hence, the right of creditors of AAG (including the holders of
the Debt Securities) to participate in any distribution of the assets of any
subsidiaries of AAG, whether upon liquidation, reorganization or otherwise, is
subject to prior claims of creditors of its subsidiaries, except to the extent
that claims of AAG itself as a creditor of a subsidiary may be recognized.
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<PAGE> 9
DENOMINATIONS, REGISTRATION AND TRANSFER
Unless otherwise indicated in the applicable Prospectus Supplement, the
Debt Securities of a series will be issuable only in fully registered form.
Unless otherwise provided in an applicable Prospectus Supplement with respect to
a series of Debt Securities, Debt Securities will be issued only in
denominations of $1,000 or any integral multiple thereof.
Debt Securities may be presented for exchange or for registration of
transfer (with the form of transfer duly executed) at the office of a transfer
agent designated by the Company for such purpose with respect to any series of
Debt Securities. If a Prospectus Supplement refers to any transfer agent
initially designated by the Company with respect to any series of Debt
Securities, the Company may at any time rescind the designation of any such
transfer agent or approve a change in the location through which any such
transfer agent acts.
The Company is not required to issue, register the transfer of, or
exchange Debt Securities of any series for the 15-day period prior to the
mailing of a notice of redemption and, with respect to any Debt Securities
called for redemption in whole or in part (except for the unredeemed portion of
any Debt Securities being redeemed in part), following such mailing.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement,
payment of principal of (and premium, if any) and interest, if any, on Debt
Securities will be made (i) by check mailed or delivered to the address of the
Person entitled thereto as such address shall appear in the Debt Security
Register or (ii) by wire transfer to an account (with a bank located inside the
United States) designated by the Person entitled thereto. Unless otherwise
indicated in an applicable Prospectus Supplement, payment of any installment of
interest on any Debt Security will be made to the Person in whose name such Debt
Security is registered at the close of business on the Regular Record Date for
such interest payment.
All moneys paid by the Company to the Trustee or a Paying Agent for the
payment of principal of (and premium, if any) and interest, if any, on any Debt
Security which remains unclaimed at the end of two years after such principal,
premium or interest shall have become due and payable may be repaid to the
Company and the holder of such Debt Security will thereafter look only to the
Company for payment thereof.
CONSOLIDATION, MERGER AND TRANSFER OF ASSETS
Under the Indentures, the Company may not consolidate with or merge
into any other entity or sell, convey, assign, transfer, lease or otherwise
dispose of all or substantially all of its properties and assets to any entity,
unless: (1) either (a) the Company shall be the continuing corporation or (b)
the entity (if other than the Company) formed by such consolidation or into
which the Company is merged or the entity that acquires, by sale, assignment,
conveyance, transfer, lease or disposition, all or substantially all of the
properties and assets of the Company as an entirety shall be a corporation,
partnership or trust organized and validly existing under the laws of the United
States or any State thereof or the District of Columbia, and shall expressly
assume by a supplemental indenture, the due and punctual payment of the
principal of and premium, if any, and interest on all the Debt Securities and
the performance and observance of every covenant of the Indentures on the part
of the Company to be performed or observed; (2) immediately thereafter, no Event
of Default (and no event that, after notice or lapse of time, or both, would
become an Event of Default) shall have occurred and be continuing; and (3)
certain other conditions, if any, are met, as are described in the Prospectus
Supplement relating to the Debt Securities being offered thereby.
In the event of any transaction (other than a lease) described in and
complying with the conditions listed in the immediately preceding paragraphs in
which the Company is not the continuing corporation, the successor entity formed
or remaining would be substituted for the Company and the Company would be
discharged from all obligations and covenants under the Indentures and the Debt
Securities.
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<PAGE> 10
EVENTS OF DEFAULT
Unless otherwise set forth in the applicable Prospectus Supplement and
Supplemental Indenture, the following events will constitute "Events of Default"
with respect to a series of Debt Securities: (i) default in the payment of any
installment of interest on any Debt Securities in such series for 30 consecutive
days after becoming due; (ii) default in the payment of the principal of (or
premium, if any, on) any Debt Securities in such series when due; (iii) default
in the performance of any other covenant or warranty applicable to such series
contained in the Debt Securities or the Indenture for a period of 60 days after
written notice of such failure, requiring the Company to remedy the same, shall
have been given to the Company by the Trustee or to the Company and the Trustee
by the holders of 25% in aggregate principal amount of such series of Debt
Securities then Outstanding; (iv) default shall have occurred under another
series of Debt Securities or any agreements, indentures or instruments under
which the Company then has outstanding Indebtedness in excess of $10 million in
the aggregate and, if not already matured in accordance with its terms, such
Indebtedness shall have been accelerated and such acceleration shall not have
been rescinded or annulled within ten days after notice thereof shall have been
given to the Company by the Trustee or to the Company and the Trustee by the
holders of at least 25% in aggregate principal amount of such series of Debt
Securities then Outstanding, provided, that if, prior to the entry of judgment
in favor of a Trustee, such default under the applicable Indenture or instrument
shall be remedied or cured by the Company, or waived by the holders of such
Indebtedness, then the Event of Default under such Senior Indenture shall be
deemed likewise to have been remedied, cured or waived and provided, further,
that if such default results from an action of the United States government or a
foreign government which prevents the Company from performing its obligations
under such agreement, indenture or instrument, the occurrence of such default
will not be an Event of Default under Indenture; (v) one or more judgments,
orders or decrees for the payment of money in excess of $10 million, either
individually or in the aggregate, shall be entered against the Company and shall
not be discharged, there shall have been a period of 60 days during which a stay
of enforcement of such judgment or order, by reason of an appeal or otherwise,
shall not be in effect and there shall have been given written notice of the
default to the Company by the Trustee or to the Company and the Trustee by the
holders of 25% in aggregate principal amount of such series of Debt Securities
then Outstanding; or (vi) certain events of bankruptcy, insolvency or
reorganization with respect to the Company shall have occurred. If an Event of
Default shall occur and be continuing with respect to a series of Debt
Securities, either the applicable Trustee or the holders of at least 25% in
principal amount of the Outstanding Debt Securities of such series may declare
the entire principal amount of all the Debt Securities of such series to be
immediately due and payable.
Under the Indentures, the Company is required to furnish the Trustees
annually a statement by certain officers of the Company to the effect that to
the best of its knowledge the Company is not in default in the fulfillment of
any of its obligations under the Indenture or, if there has been a default in
the fulfillment of any such obligation, specifying each such default.
The Indenture provides that the Trustee shall, within 90 days after the
occurrence of a default with respect to a particular series of Debt Securities
(unless such default has been cured or waived), give the holders of the Debt
Securities of such series notice of such default known to it (the term default
to mean the events specified above without grace periods); provided that, except
in the case of a default in the payment of principal of (or premium, if any) or
interest, if any, on any of the Debt Securities of such series, the Trustee
shall be protected in withholding such notice if it in good faith determines the
withholding of such notice is in the interest of the holders of the Debt
Securities of such series.
The holders of a majority in principal amount of a particular series of
Debt Securities Outstanding have the right, subject to certain limitations, to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee with respect to such series or exercising any trust or
power conferred on the Trustee, and to waive certain defaults. The Indentures
provide that in case an Event of Default shall occur and be continuing, the
Trustee shall exercise such of its rights and powers under the Indenture, and
use the same degree of care and skill in its exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs. Subject to such provisions, the Trustee will be under no obligation to
exercise any of its rights or powers under the Indenture at the request of any
of the holders of the Debt Securities unless they shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request.
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<PAGE> 11
SATISFACTION AND DISCHARGE
Except as may otherwise be set forth in the Prospectus Supplement
relating to a series of Debt Securities, the Indenture provides that the Company
shall be deemed to have satisfied and discharged its obligations under the Debt
Securities of such series (with certain exceptions) at any time prior to the
Stated Maturity or redemption thereof when (a) the Company has deposited with
the Trustee, in trust, sufficient funds to pay the principal of (and premium, if
any) and interest, if any, to Stated Maturity (or to Redemption Date) on, the
Debt Securities of such series, (b) the Company has paid all other sums payable
with respect to the Debt Securities of such series and (c) certain other
conditions are met. Upon such discharge, the holders of the Debt Securities of
such series shall no longer be entitled to the benefits of the Indenture, except
for certain rights, including registration of transfer and exchange of the Debt
Securities of such series and replacement of mutilated, destroyed, lost or
stolen Debt Securities, and shall look only to such deposited funds.
Such discharge may be treated as a taxable exchange of the related Debt
Securities for an issue of obligations of the trust or a direct interest in the
cash and securities held in the trust. In that case, holders of such Debt
Securities would recognize gain or loss as if the trust obligations or the cash
or securities deposited, as the case may be, had actually been received by them
in exchange for their Debt Securities. Such holders thereafter might be required
to include in income a different amount than would be includable in the absence
of discharge. Prospective investors are urged to consult their own tax advisors
as to the specific consequences of discharge.
MODIFICATION AND WAIVER
Certain modifications and amendments (which, generally, either benefit
or do not affect the holders of Outstanding Debt Securities) of the Indenture
may be made by the Company and the Trustee without the consent of holders of the
Debt Securities. Other modifications and amendments of each Indenture require
the consent of the holders of more than 50% in principal amount of the
Outstanding applicable Debt Securities of each series issued under the Indenture
affected by the modification or amendment; provided, however, that no such
modification or amendment may, without the consent of the holder of each
Outstanding Debt Security affected thereby, (a) change the Stated Maturity of
the principal of, or any installment of principal of or interest, if any, on any
Debt Security, (b) reduce the principal amount of (or premium, if any) or
interest, if any, on any Debt Security, (c) reduce the amount of principal of a
Debt Security payable upon acceleration of the Maturity thereof, (d) impair the
right to institute suit for the enforcement of any payment on or with respect to
any Debt Security on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date) or (e) reduce the percentage in
principal amount of Outstanding Debt Securities of any series, the consent of
the holders of which is required for modification or amendment of such Indenture
or for waiver of compliance with certain provisions of such Indenture or for
waiver of certain defaults.
The holders of a majority in principal amount of the Outstanding Debt
Securities of any series may on behalf of the holders of all Debt Securities of
that series waive, insofar as that series is concerned, compliance by the
Company with certain restrictive provisions of the applicable Indenture. The
holders of a majority in principal amount of the Outstanding Debt Securities of
any series may on behalf of the holders of all Debt Securities of that series
waive any past default under the Indenture with respect to that series, except a
default in the payment of the principal of (or premium, if any) and interest, if
any, on any Debt Security of that series or in respect of a provision which
under the Indenture cannot be modified or amended without the consent of the
holder of each Outstanding Debt Security of that series affected.
PROVISIONS APPLICABLE TO THE SUBORDINATED DEBT SECURITIES
The Subordinated Indenture will provide that the Subordinated Debt
Securities are subordinated and junior in right of payment to the prior payment
in full of all Senior Indebtedness of the Company whether now existing or
hereafter incurred. In the event and during the continuation of any default by
the Company in the payment of principal, premium, interest or any other payment
due on any Senior Indebtedness of the Company, or in the event that the maturity
of any Senior Indebtedness of the Company has been accelerated because of a
default, then in either case, no payment will be made by the Company with
respect to the principal (including redemption payments) of or interest on the
Subordinated Debt Securities. Upon any distribution of assets of the Company to
creditors upon any dissolution,
- 9 -
<PAGE> 12
winding-up, liquidation or reorganization, whether voluntary or involuntary, or
in bankruptcy, insolvency, receivership or other proceedings, all principal,
premium, if any, and interest due or to become due on all Senior Indebtedness of
the Company (including interest after the commencement of any bankruptcy,
insolvency, receivership or other proceedings at the rate specified in the
applicable Senior Indebtedness, whether or not such interest is an allowable
claim in any such proceeding) must be paid in full before the holders of
Subordinated Debt Securities are entitled to receive or retain any payment. In
the event that the Subordinated Debt Securities are declared due and payable
before the Maturity Date, then all amounts due or to become due on all Senior
Indebtedness shall have been paid in full (including interest after the
commencement of any bankruptcy, insolvency, receivership or other proceedings at
the rate specified in the applicable Senior Indebtedness, whether or not such
interest is an allowable claim in any such proceeding) before holders of the
Subordinated Debt Securities are entitled to receive or retain any payment. Upon
satisfaction of all claims of all Senior Indebtedness then outstanding, the
rights of the holders of the Subordinated Debt Securities will be subrogated to
the rights of the holders of Senior Indebtedness of the Company to receive
payments or distributions applicable to Senior Indebtedness until all amounts
owing on the Subordinated Debt Securities are paid in full.
The term "Senior Indebtedness" means, with respect to the Company or
Guarantor, (i) the principal, premium, if any, and interest in respect of (A)
Indebtedness of such obligor for money borrowed and (B) Indebtedness evidenced
by securities, debentures, bonds or other similar instruments issued by such
obligor; (ii) all capital lease obligations of such obligor; (iii) all
obligations of such obligor issued or assumed as the deferred purchase price of
property, all conditional sale obligations of such obligor and all obligations
of such obligor under any title retention agreement (but excluding trade
accounts payable arising in the ordinary course of business); (iv) all
obligations of such obligor for the reimbursement on any letter of credit,
banker's acceptance, security purchase facility or similar credit transaction;
(v) all obligations of the type referred to in clauses (i) through (iv) above of
other persons for the payment of which such obligor is responsible or liable as
obligor, guarantor or otherwise; and (vi) all obligations of the type referred
to in clauses (i) through (v) above of other persons secured by any lien on any
property or asset of such obligor (whether or not such obligation is assumed by
such obligor); except in each case for (1) any such Indebtedness that is by its
terms subordinated to or pari passu with the Subordinated Debt Securities, and
(2) any Indebtedness in respect of debt securities issued to any trust, or a
trustee of such trust, partnership or other entity affiliated with the Company
or the Guarantor that is a financing entity for such obligor (a "financing
entity") in connection with the issuance by such financing entity of securities.
Such Senior Indebtedness shall continue to be Senior Indebtedness and be
entitled to the benefits of the subordination provisions irrespective of any
amendment, modification or waiver of any term of such Senior Indebtedness.
The Subordinated Indenture does not limit the aggregate amount of
Senior Indebtedness that may be issued by the Company.
PLAN OF DISTRIBUTION
The Company may offer and sell Debt Securities in any of the following
ways: (i) directly to purchasers, (ii) through agents, (iii) through
underwriters, (iv) through dealers or (v) through a combination of any such
methods. The Prospectus Supplement with respect to an offering of Debt
Securities will set forth the terms of such offering, including, to the extent
applicable, the name or names of any underwriters (and any managing
underwriters), the names of any dealers or agents, the sales price of the Debt
Securities and the proceeds to the Company from such sale, any underwriting
discounts and commissions or agency fees and other items constituting
underwriters' or agents' compensation, any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers and any
securities exchanges or interdealer quotation system on which such Debt
Securities are expected to be listed. Any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers may be changed
from time to time.
Debt Securities may be offered and sold, and offers to purchase such
securities may be solicited, by agents designated by the Company from time to
time. Any such agent involved in the offer or sale of the Debt Securities in
respect of which this Prospectus is delivered will be named, and the terms of
such agency (including any commissions payable by the Company to such agent)
will be set forth, in the applicable Prospectus Supplement. Unless otherwise
- 10 -
<PAGE> 13
indicated in such Prospectus Supplement, any such agent will be acting on a best
efforts basis for the period of its appointment.
If underwriters are utilized in the sale of Debt Securities, the
Company will execute an underwriting agreement with such underwriters at the
time an agreement for such sale is reached, and the names of the managing
underwriter or managing underwriters, as well as any other underwriters, and the
terms of the transaction, including commissions, discounts and other
compensation of the underwriters and dealers, if any, will be set forth in the
Prospectus Supplement, which will be used by the underwriters to make resales of
such Debt Securities. If underwriters are used in the sale, such underwriters
will acquire Debt Securities for their own account and may resell such Debt
Securities from time to time in one or more transactions, including negotiated
transactions, at fixed public offering prices or at varying prices determined by
the underwriter at the time of sale. Debt Securities may be offered to the
public either through underwriting syndicates represented by managing
underwriters, or directly by underwriters without a syndicate. Only underwriters
named in the Prospectus Supplement are deemed to be underwriters in connection
with the Debt Securities offered thereby. If any underwriters are utilized in
the sale of the Debt Securities, unless otherwise set forth in the Prospectus
Supplement relating thereto, the underwriting agreement will provide that the
obligations of the underwriters are subject to certain conditions precedent and
that the underwriters will be obligated to purchase all such Debt Securities, if
any are purchased.
If a dealer is utilized in the sale of the Debt Securities, the Company
will sell such Debt Securities to the dealer, as principal. The dealer may then
resell such Debt Securities to the public at varying prices to be determined by
such dealer at the time of resale. The name of the dealer and the terms of the
transaction will be set forth in the Prospectus Supplement relating thereto.
Agents, underwriters and dealers may be entitled under agreements that
may be entered into with the Company to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act, or to
contribution with respect to payments which the agents, underwriters or dealers
may be required to make in respect thereof. Agents, underwriters and dealers may
be customers of, engage in transactions with, or perform services for the
Company and affiliates of the Company. Any agents, dealers or underwriters
participating in the offering of Debt Securities may be deemed "underwriters"
within the meaning of the Securities Act, of the Debt Securities so offered.
Offers to purchase Debt Securities may be solicited directly by the
Company and sales thereof may be made by the Company directly to institutional
investors or others, who may be deemed to be underwriters within the meaning of
the Securities Act with respect to any resale thereof. The terms of any such
sales, including the terms of any bidding or auction process, if utilized, will
be described in the Prospectus Supplement relating thereto.
Each series of Debt Securities will be a new issue of securities and
may have no established trading market. Agents and underwriters may from time to
time purchase and sell Debt Securities in the secondary market or may make a
market in the Debt Securities, but are not obligated to do so, and there can be
no assurance that there will be a secondary market for the Debt Securities or
liquidity in the secondary market if one develops.
If so indicated in the applicable Prospectus Supplement, the Company
will authorize agents, underwriters or dealers to solicit offers by certain
institutions to purchase Debt Securities from the Company at the public offering
price set forth in the applicable Prospectus Supplement pursuant to Delayed
Delivery Contracts ("Contracts") providing for payment and delivery on a
specified date in the future. A commission indicated in the applicable
Prospectus Supplement will be paid to underwriters, dealers or agents soliciting
purchases of Debt Securities pursuant to Contracts accepted by the Company. The
Contracts will be subject to the conditions set forth in the applicable
Prospectus Supplement.
As one of the means of direct issuances of Debt Securities, the Company
may utilize the services of an entity through which it may conduct an electronic
"dutch auction" or similar offering of the Debt Securities among potential
purchasers who are eligible to participate in the auction or offering of such
Debt Securities, if so described in the applicable Prospectus Supplement.
The anticipated place and time of delivery for the Debt Securities will
be set forth in the applicable Prospectus Supplement.
- 11 -
<PAGE> 14
LEGAL MATTERS
The validity of the Debt Securities offered hereby will be passed upon
for the Company by Keating, Muething & Klekamp, P.L.L., Cincinnati, Ohio.
Attorneys in Keating, Muething & Klekamp hold certain securities of the Company.
EXPERTS
The consolidated financial statements of AAG appearing in AAG's Annual
Report (Form 10-K) for the year ended December 31, 1996, have been audited by
Ernst & Young LLP, independent auditors, as set forth in their report thereon,
included therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
- 12 -
<PAGE> 15
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses in connection with the offering
described in this Registration Statement:
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission registration fee*............................ $45,456
New York Stock Exchange listing fee............................................. 45,000
Legal fees and expenses......................................................... 35,000
Accounting fees and expenses.................................................... 10,000
Printing and engraving expenses ................................................ 50,000
Trustee's fees and expenses..................................................... 15,000
Rating Agencies' fees........................................................... 125,000
Blue Sky fees and expenses...................................................... 5,000
Miscellaneous................................................................... 4,544
--------
TOTAL........................................................................... $335,000
========
</TABLE>
- ----------------
*Actual; other expenses are estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL") provides
generally and in pertinent part that a Delaware corporation may indemnify its
directors and officers against expenses, judgments, fines, and settlements
actually and reasonably incurred by them in connection with any civil suit or
action, except actions by or in the right of the corporation, or any
administrative or investigative proceeding if, in connection with the matters in
issue, they acted in good faith and in a manner they reasonably believe to be
in, or not opposed to, the best interest of the corporation, and in connection
with any criminal suit or proceeding, if in connection with the matters in
issue, they had no reasonable cause to believe their conduct was unlawful.
Section 145 further provides that, in connection with the defense or settlement
of any action by or in the right of the corporation, a Delaware corporation may
indemnify its directors and officers against expenses actually and reasonably
incurred by them if, in connection with the matters in issue, they acted in good
faith, in a manner they reasonably believed to be in, or not opposed to, the
best interests of the corporation, and without negligence or misconduct in the
performance of their duties to the corporation. Section 145 further permits a
Delaware corporation to grant its directors and officers additional rights of
indemnification through by-law provisions and otherwise.
II-1
<PAGE> 16
Article VII of the Registrant's By-Laws provides for indemnification of
directors and officers similar to that provided in Section 145 of DGCL.
Reference is made to Section 102(b)(7) of the DGCL, which enables a
corporation in its original certificate of incorporation or an amendment thereto
to eliminate or limit the personal liability of a director for violations of the
director's fiduciary duty, except (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) pursuant to Section 174 of the DGCL (providing for liability of
directors for unlawful payment of dividends or unlawful stock purchases or
redemptions) or (iv) for any transactions from which a director derived an
improper personal benefit. Article Ninth of the Registrant's Certificate of
Incorporation eliminates the liability of directors to the extent permitted by
Section 102(b)(7) of the DGCL.
Ohio Revised Code Section 1701.13(E) allows indemnification by AAG
Holding Company, Inc. ("AAG Holding") to any person made or threatened to be
made a party to any proceedings, other than a proceeding by or in the right of
AAG Holding, by reason of the fact that he is or was a director, officer,
employee or agent of AAG Holding, against expenses, including judgment and
fines, if he acted in good faith and in a manner reasonably believed to be in or
not opposed to the best interests of AAG Holding and, with respect to criminal
actions, in which he had no reasonable cause to believe that his conduct was
unlawful. Similar provisions apply to actions brought by or in the right of AAG
Holding, except that no indemnification shall be made in such cases when the
person shall have been adjudged to be liable for negligence or misconduct to AAG
Holding unless deemed otherwise by the court. Indemnification is to be made by a
majority vote of a quorum of disinterested directors or the written opinion of
independent counsel or by the shareholders or by the court. AAG Holding's Code
of Regulations extends such indemnification.
American Annuity Group, Inc. also maintains directors' and officers'
reimbursement and liability insurance and has entered into agreement with its
directors and officers providing for indemnification in certain events.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
Exhibit Description of Document
------- -----------------------
1.1 * Underwriting Agreement for Debt Securities
4.1 ** Certificate of Incorporation of American Annuity Group, Inc.
4.2 ** Bylaws of American Annuity Group, Inc.
4.3 Form of Senior Indenture
4.4 Form of Subordinated Indenture
5.1 * Opinion of Keating, Muething & Klekamp, P.L.L.
23.1 Consent of Independent Auditors
23.2 Consent of Keating, Muething & Klekamp, P.L.L.
24.0 Powers of Attorney (contained on the signature page).
II-2
<PAGE> 17
Exhibit Description of Document
------- -----------------------
25.1 Statement of Eligibility on Form T-1 under the Trust Indenture
Act of 1939, as amended, of Star Bank, N.A., as Trustee under
the Senior Indenture
25.2 Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of Star Bank, N.A.,
as Trustee under the Subordinated Indenture
- -------------------
* To be filed as an exhibit to a Current Report on Form 8-K.
** Incorporated by reference from other documents filed with the Commission.
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(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.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) under the Securities Act if,
in the aggregate, the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
II-3
<PAGE> 18
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining 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 the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) If the securities to be registered are to be offered at competitive bidding,
the undersigned Registrant hereby undertakes: (1) to use its best efforts to
distribute prior to the opening of bids, to prospective bidders, underwriters,
and dealers, a reasonable number of copies of a prospectus which at that time
meets the requirements of Section 10(a) of the Act, and relating to the
securities offered at competitive bidding, as contained in the Registration
Statement, together with any supplements thereto, and (2) to file an amendment
to the Registration Statement reflecting the results of bidding, the terms of
the reoffering and related matters to the extent required by the applicable
form, not later than the first use, authorized by the issuer after the opening
of bids, of a prospectus relating to the securities offered at competitive
bidding, unless no further public offering of such securities by the issuer and
no reoffering of such securities by the purchasers is proposed to be made.
(d) 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 foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(e) The undersigned Registrant hereby undertakes that
(1) for purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective; and
II-4
<PAGE> 19
(2) for the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(f) The undersigned Registrant hereby undertakes to file, if necessary, 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 of 1939 in
accordance with the rules and regulations prescribed by the Securities and
Exchange Commission under Section 305(b)(2) of such Act.
II-5
<PAGE> 20
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Cincinnati, State of Ohio, as of the 25th day of
November, 1997.
AMERICAN ANNUITY GROUP, INC.
By: /s/ CARL H. LINDNER
-----------------------------------
Carl H. Lindner
Chairman of the Board
(Principal Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person below whose signature is
preceded by an asterisk (*) hereby constitutes and appoints Mark F. Muething and
William J. Maney, or each of them, his true and lawful attorney and agent, to do
any and all acts and execute instruments for him in his name and in the capacity
indicated below, which said attorneys and agents, or either of them, may deem
necessary or advisable to enable American Annuity Group, Inc. to comply with the
Securities Act of 1933, and any rules, regulations and requirements of the
Securities and Exchange Commission, in connection with this Registration
Statement, including specifically, but without limitation, power and authority
to sign amendments (including post-effective amendments).
<TABLE>
<CAPTION>
Signature Capacity Date
- --------- -------- ----
<S> <C> <C>
*/s/ CARL H. LINDNER Chairman of the Board of Directors November 25, 1997
- ------------------------------ (Principal Executive Officer)
Carl H. Lindner
*/s/ S. CRAIG LINDNER Director November 25, 1997
- ------------------------------
S. Craig Lindner
*/s/ ROBERT A. ADAMS Director November 25, 1997
- ------------------------------
Robert A. Adams
*/s/ A. LEON FERGENSON Director November 25, 1997
- ------------------------------
A. Leon Fergenson
*/s/ RONALD G. JOSEPH Director November 25, 1997
- ------------------------------
Ronald G. Joseph
*/s/ JOHN T. LAWRENCE III Director November 25, 1997
- ------------------------------
John T. Lawrence III
</TABLE>
<PAGE> 21
<TABLE>
<CAPTION>
Signature Capacity Date
- --------- -------- ----
<S> <C> <C>
*/s/ WILLIAM R. MARTIN Director November 25, 1997
- ------------------------------
William R. Martin
*/s/ WILLIAM J. MANEY Senior Vice President, Treasurer and November 25, 1997
- ------------------------------ Chief Financial Officer (Principal
William J. Maney Financial Officer and Principal
Accounting Officer)
</TABLE>
<PAGE> 22
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Cincinnati, State of Ohio,
as of the 25th day of November, 1997.
AAG HOLDING COMPANY
By: /s/ CARL H. LINDNER
----------------------------
Carl H. Lindner
Chairman of the Board
(Principal Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person below whose signature is
preceded by an asterisk (*) hereby constitutes and appoints Mark F. Muething and
William J. Maney, or each of them, his true and lawful attorney and agent, to do
any and all acts and execute instruments for him in his name and in the capacity
indicated below, which said attorneys and agents, or either of them, may deem
necessary or advisable to enable American Annuity Group, Inc. to comply with the
Securities Act of 1933, and any rules, regulations and requirements of the
Securities and Exchange Commission, in connection with this Registration
Statement, including specifically, but without limitation, power and authority
to sign amendments (including post-effective amendments).
<TABLE>
<CAPTION>
Signature Capacity Date
- --------- -------- ----
<S> <C> <C>
*/s/ CARL H. LINDNER Chairman of the Board of Directors November 25, 1997
- ------------------------------ (Principal Executive Officer)
Carl H. Lindner
*/s/ S. CRAIG LINDNER Director November 25, 1997
- ------------------------------
S. Craig Lindner
*/s/ ROBERT A. ADAMS Director November 25, 1997
- ------------------------------
Robert A. Adams
*/s/ WILLIAM J. MANEY Senior Vice President, Treasurer and November 25, 1997
- ------------------------------ Chief Financial Officer (Principal
William J. Maney Financial Officer and Principal
Accounting Officer)
</TABLE>
<PAGE> 1
Exhibit 4.3
=================================================================
AAG HOLDING COMPANY, INC.,
ISSUER
AMERICAN ANNUITY GROUP, INC.,
GUARANTOR
AND
STAR BANK, N.A.,
TRUSTEE
INDENTURE
DATED AS OF , 1997
SENIOR DEBT SECURITIES
=================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
ARTICLE 1. DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION..........................................................................1
SECTION 1.1 Definitions...................................................................1
SECTION 1.2 Compliance Certificates and Opinions..........................................8
SECTION 1.3 Form of Documents Delivered to Trustee........................................8
SECTION 1.4 Acts of Holders...............................................................9
SECTION 1.5 Notices, Etc., to Trustee and Company........................................10
SECTION 1.6 Notice to Holders; Waiver....................................................10
SECTION 1.7 Conflict with Trust Indenture Act............................................11
SECTION 1.8 Effect of Headings and Table of Contents.....................................11
SECTION 1.9 Successors and Assigns.......................................................11
SECTION 1.10 Separability Clause..........................................................11
SECTION 1.11 Benefits of Indenture........................................................11
SECTION 1.12 Governing Law................................................................11
SECTION 1.13 Non-Business Day.............................................................12
SECTION 1.14 Immunity of Incorporators, Shareholders,
Officers and Directors.....................................................12
ARTICLE 2. DEBT SECURITY FORM.............................................................................12
SECTION 2.1 Form of Debt Securities......................................................12
SECTION 2.2 Form of Trustee's Certificate of Authentication..............................13
SECTION 2.3 Unconditional Guarantee......................................................14
SECTION 2.4 Assumption by Guarantor......................................................15
SECTION 2.5 Debt Securities in Global Form...............................................16
ARTICLE 3. THE DEBT SECURITIES............................................................................16
SECTION 3.1 Title; Payment and Terms.....................................................16
SECTION 3.2 Denominations................................................................18
SECTION 3.3 Execution, Authentication, Delivery and Dating...............................18
SECTION 3.4 Temporary Debt Securities and Exchange of Debt Securities....................20
SECTION 3.5 Registration, Registration of Transfer and Exchange..........................20
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Debt Securities........................23
SECTION 3.7 Payment of Interest; Interest Rights Preserved...............................24
SECTION 3.8 Persons Deemed Owners........................................................25
SECTION 3.9 Cancellation.................................................................25
SECTION 3.10 Computation of Interest......................................................26
ARTICLE 4. SATISFACTION AND DISCHARGE.....................................................................26
SECTION 4.1 Satisfaction and Discharge of Debt Securities of any Series..................26
SECTION 4.2 Application of Trust Money...................................................28
SECTION 4.3 Satisfaction and Discharge of Indenture......................................28
SECTION 4.4 Reinstatement................................................................29
</TABLE>
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<TABLE>
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ARTICLE 5. REMEDIES.......................................................................................29
SECTION 5.1 Events of Default............................................................29
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment...........................31
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee.......................................................32
SECTION 5.4 Trustee May File Proofs of Claim.............................................33
SECTION 5.5 Trustee May Enforce Claims Without
Possession of Debt Securities................................................34
SECTION 5.6 Application of Money Collected...............................................34
SECTION 5.7 Limitation on Suits..........................................................35
SECTION 5.8 Unconditional Right of Holders to Receive Principal
(and Premium, if any) and Interest, if any...................................35
SECTION 5.9 Restoration of Rights and Remedies...........................................36
SECTION 5.10 Rights and Remedies Cumulative...............................................36
SECTION 5.11 Delay or Omission Not Waiver.................................................36
SECTION 5.12 Control by Holders...........................................................36
SECTION 5.13 Waiver of Past Defaults......................................................37
SECTION 5.14 Waiver of Stay or Extension Laws.............................................37
SECTION 5.15 Undertaking for Costs........................................................37
ARTICLE 6. THE TRUSTEE....................................................................................38
SECTION 6.1 Certain Duties and Responsibilities..........................................38
SECTION 6.2 Notice of Defaults...........................................................39
SECTION 6.3 Certain Rights of Trustee....................................................39
SECTION 6.4 Not Responsible for Recitals or Issuance of Debt Securities..................40
SECTION 6.5 May Hold Debt Securities.....................................................40
SECTION 6.6 Money Held in Trust..........................................................40
SECTION 6.7 Compensation and Reimbursement...............................................41
SECTION 6.8 Disqualification; Conflicting Interests......................................41
SECTION 6.9 Corporate Trustee Required, Different Trustees
for Different Series; Eligibility............................................41
SECTION 6.10 Resignation and Removal; Appointment of Successor............................42
SECTION 6.11 Acceptance of Appointment by Successor.......................................43
SECTION 6.12 Merger, Conversion, Consolidation or
Succession to Business.....................................................45
SECTION 6.13 Preferential Collection of Claims Against Company............................45
SECTION 6.14 Authenticating Agents........................................................45
ARTICLE 7. HOLDERS' REPORTS BY TRUSTEE AND COMPANY........................................................47
SECTION 7.1 Preservation of Information; Company to Furnish Trustee Names and
Addresses of Holders.........................................................47
SECTION 7.2 Communications to Holders....................................................47
SECTION 7.3 Reports by Trustee...........................................................47
SECTION 7.4 Reports by Company...........................................................47
</TABLE>
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ARTICLE 8. CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER..................................................48
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms.........................48
SECTION 8.2 Successor Corporation Substituted............................................48
ARTICLE 9. SUPPLEMENTAL INDENTURES........................................................................49
SECTION 9.1 Supplemental Indentures Without Consent of Holders...........................49
SECTION 9.2 Supplemental Indentures With Consent of Holders..............................50
SECTION 9.3 Execution of Supplemental Indentures.........................................51
SECTION 9.4 Effect of Supplemental Indentures............................................51
SECTION 9.5 Conformity With Trust Indenture Act..........................................52
SECTION 9.6 Reference in Debt Securities to Supplemental Indentures......................52
ARTICLE 10. COVENANTS......................................................................................52
SECTION 10.1 Payment of Principal (and Premium, if any) and
Interest, if any.............................................................52
SECTION 10.2 Maintenance of Office or Agency..............................................52
SECTION 10.3 Money for Debt Securities Payments to Be Held in Trust.......................53
SECTION 10.4 Payment of Taxes and Other Claims............................................54
SECTION 10.5 Maintenance of Properties....................................................55
SECTION 10.6 Corporate Existence..........................................................55
SECTION 10.7 Waiver of Certain Covenants..................................................55
ARTICLE 11. REDEMPTION OF DEBT SECURITIES..................................................................55
SECTION 11.1 Applicability of this Article................................................55
SECTION 11.2 Election to Redeem; Notice to Trustee........................................56
SECTION 11.3 Selection by Debt Security Registrar of Debt Securities
to Be Redeemed.............................................................56
SECTION 11.4 Notice of Redemption.........................................................57
SECTION 11.5 Deposit of Redemption Price..................................................57
SECTION 11.6 Debt Securities Payable on Redemption Date. ................................57
SECTION 11.7 Debt Securities Redeemed in Part.............................................58
ARTICLE 12. SINKING FUNDS..................................................................................58
SECTION 12.1 Applicability of this Article................................................58
SECTION 12.2 Satisfaction of Sinking Fund Payments With Debt Securities...................59
SECTION 12.3 Redemption of Debt Securities for Sinking Fund...............................59
</TABLE>
<PAGE> 5
INDENTURE, dated as of ______________, 1997, among AAG HOLDING COMPANY,
INC., an Ohio corporation, 250 East Fifth Street, Cincinnati, Ohio 45202 (the
"Company"), AMERICAN ANNUITY GROUP, INC., a Delaware corporation, 250 East Fifth
Street, Cincinnati, Ohio 45202 (the "Guarantor") and STAR BANK, N.A., a national
banking association, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its
lawful purposes securities (hereinafter called the "Debt Securities") evidencing
its unsecured indebtedness and has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of the Debt
Securities, unlimited as to principal amount, to have such titles, to bear such
rates of interest, to mature at such time or times and to have such other
provisions as shall be fixed as hereinafter provided.
All things necessary to make this Indenture a valid agreement of the
Company and Guarantor, in accordance with its terms, have been done, and the
Company proposes to do all things necessary to make the Debt Securities, when
executed by the Company and Guarantor and authenticated and delivered hereunder
and duly issued by the Company and Guarantor, the valid obligations of the
Company and Guarantor as hereinafter provided.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Debt
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Debt Securities or any
series thereof, as follows:
ARTICLE 1.
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions.
For all purposes of this Indenture and all Debt Securities issued
hereunder, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles in
the United States, and the term "generally accepted accounting principles" with
respect to any computation required or permitted
<PAGE> 6
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hereunder shall mean such generally accepted accounting principles as in effect
and as implemented by the Company at the time of their application; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article 3 and Article 6, are defined
in those Articles.
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.4.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized to authenticate and
deliver Debt Securities on behalf of the Trustee for the Debt Securities of any
series pursuant to Section 6.14.
"Board of Directors" means the board of directors of the Company or the
Guarantor or any duly authorized committee of either of such boards or any
director or directors and/or officer or officers of the Company or Guarantor to
whom that either of such boards or committees shall have duly delegated its
authority.
"Board Resolution" means (1) a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company or the Guarantor to have been
duly adopted by the Board of Directors or the Executive Committee of the Board
of Directors and to be in full force and effect on the date of such
certification, or (2) a certificate signed by the director or directors or
officer or officers to whom the Board of Directors shall have duly delegated its
authority, and delivered to the Trustee.
"Business Day", when used with respect to any particular Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking institutions in that Place of Payment are authorized or
obligated by law to close.
"Capital Stock" means any and all shares of the Common Stock and any
class or series of preferred or preference stock of the Company, whether now
outstanding or issue after the date of this Indenture.
"Capitalized Lease Obligation" means any obligation to pay rent or
other amounts under a lease of (or other agreement conveying the right to use)
real or personal property that is required to be classified and accounted for as
a capital lease obligation under generally accepted accounting principles
consistently applied, and, for the purposes of this Indenture, the amount of
such obligation
<PAGE> 7
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at any date shall be the capitalized amount thereof at such date, determined in
accordance with such principles.
"Certificate of a Firm of Independent Public Accountants" means a
certificate signed by any firm of independent public accountants of recognized
standing selected by the Company. The term "independent" when used with respect
to any specified firm of public accountants means such a firm which (1) is in
fact independent, (2) does not have any direct financial interest or any
material indirect financial interest in the Company or in any Affiliate of the
Company, and (3) is not connected with the Company or any Affiliate of the
Company as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions, but such firm may be the
regular auditors employed by the Company.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, and the regulations thereunder.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"Common Stock" means the common stock, no par value, of the Company.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by (1) the Chairman of the
Board, a Vice Chairman of the Board, Chief Executive Officer, the President, a
Co-President or a Vice President and by the Treasurer, an Assistant Treasurer,
an Assistant Controller, the Secretary or an Assistant Secretary of the Company,
or (2) by any two Persons designated in a Company Order previously delivered to
the Trustee for the Debt Securities of any series by any two of the foregoing
officers and delivered to the Trustee for the Debt Securities of such series.
"Corporate Trust Office" means the office of the Trustee for Debt
Securities of any series at which at any particular time its corporate trust
business shall be principally administered, which as of the date of this
Indenture is located at 425 Walnut Street, Cincinnati, Ohio 45202.
"Corporation" includes corporations, associations, joint-stock and
limited liability companies and business trusts.
"Debt Securities" means securities evidencing unsecured indebtedness of
the Company authenticated and delivered under this Indenture.
"Debt Security Register" and "Debt Security Registrar" have the
respective meanings specified in Section 3.5.
"Defaulted Interest" has the meaning specified in Section 3.7.
<PAGE> 8
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"Discounted Debt Security" means any Debt Security which provides for
an amount (excluding any amounts attributable to accrued but unpaid interest
thereon) less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.2.
"Dollars" and the sign "$" mean the currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934.
"Global Security" means a Debt Security in global form established
pursuant to Section 2.5.
"Holder", when used with respect to any Debt Security, means the Person
in whose name a Debt Security is registered in the Debt Security Register.
"Indebtedness" means (a) any liability of any Person (1) for borrowed
money, or under any reimbursement obligation relating to a letter of credit
(other than letters of credit obtained in the ordinary course of business), or
(2) evidenced by a bond, note, debenture or similar instrument (including a
purchase money obligation) given in connection with the acquisition of any
businesses, properties or assets of any kind or with services incurred in
connection with capital expenditures (other than accounts payable or other
indebtedness to trade creditors arising in the ordinary course of business), or
(3) for the payment of money relating to a Capitalized Lease Obligation; (b) any
liability of others described in the preceding clause (a) that the Person has
guaranteed or that is otherwise its legal liability; and (c) any amendment,
supplement, modification, deferral, renewal, extension or refunding of any
liability of the types referred to in clauses (a) and (b) above.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of a particular series of Debt Securities
established as contemplated by Section 3.1.
"Interest", when used with respect to a Discounted Debt Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity.
"Interest Payment Date", when used with respect to any Debt Security,
means the Stated Maturity of an installment of interest on such Debt Security.
"Lien" means any mortgage, lien, pledge, security interest,
conditional sale or other title retention agreement, charge or other security
interest or encumbrance of any kind.
<PAGE> 9
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"Maturity", when used with respect to any Debt Security, means the date
on which the principal of that Debt Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, request for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, a Co-President or a Vice President (any
reference to a Vice President of the Company herein shall be deemed to include
any Vice President of the Company whether or not designated by a number or a
word or words added before or after the title "Vice President"), and by the
Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary of the Company, and delivered to the Trustee
for the Debt Securities of any series.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel to the Company, or other counsel satisfactory to the
Trustee for the Debt Securities of any series. An Opinion of Counsel may rely on
certificates as to matters of fact.
"Outstanding", when used with respect to Debt Securities, means, as of
the date of determination, all Debt Securities theretofore authenticated and
delivered under this Indenture, except:
(1) Debt Securities theretofore canceled by the Trustee for such Debt
Securities or delivered to such Trustee for cancellation;
(2) Debt Securities or portions thereof for whose payment or redemption
money in the necessary amount has been theretofore deposited with the Trustee
for such Debt Securities or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Debt Securities (including Debt
Securities with respect to which the Company has effected satisfaction and
discharged as provided in Article Four, except to the extent provided in such
Article); provided, however, that, if such Debt Securities or portions thereof
are to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture, or provision therefor satisfactory to such Trustee has been
made; and
(3) Debt Securities which have been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Debt Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Debt Securities in
respect of which there shall have been presented proof satisfactory to the
Trustee for such Debt Securities that any such Debt Securities are held by bona
fide purchasers in whose hands the Debt Securities are valid obligations of the
Company; provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
(a) Debt Securities owned by the Company or any Affiliate of the Company shall
be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee for such Debt Securities shall be protected in relying upon
any such request,
<PAGE> 10
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demand, authorization, direction, notice, consent or waiver, only Debt
Securities which such Trustee knows to be so owned shall be so disregarded,
provided, that Debt Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction of
such Trustee the pledgee's right so to act with respect to such Debt Securities
and that the pledgee is not the Company or any Affiliate of the Company and (b)
the principal amount of a Discounted Debt Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration pursuant to Section 5.2.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest, if any, on any Debt Securities
on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock or limited liability company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Debt Securities of
any particular series, means the place or places where the principal of (and
premium, if any) and interest, if any, on the Debt Securities of that series are
payable, as contemplated by Section 3.1.
"Predecessor Debt Security" of any particular Debt Security means
every previous Debt Security evidencing all or a portion of the same debt as
that evidenced by that particular Debt Security, and, for the purposes of this
definition, any Debt Security authenticated and delivered under Section 3.6 in
lieu of a mutilated, destroyed, lost or stolen Debt Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Debt
Security.
"Redemption Date", when used with respect to any Debt Security to be
redeemed in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Debt Security to be
redeemed, means an amount equal to the principal amount thereof (and premium, if
any, thereon) together with accrued interest, if any, to the Redemption Date.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Debt Securities of any series, means the date, if any, specified for
that purpose as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee for any
series of Debt Securities, means the chairman or vice chairman of the board of
directors, the chairman or vice chairman of the executive committee of the board
of directors, the chief executive officer, the president, any vice president
(whether or not designated by a number or a word or words added before or after
the title "vice president"), the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, the controller or any assistant
controller or any other officer of such Trustee customarily performing
<PAGE> 11
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functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
A "series" of Debt Securities means all Debt Securities denoted as part
of the same series authorized by or pursuant to a particular Board Resolution.
"Special Record Date" for the payment of any Defaulted Interest on the
Debt Securities of any series means a date fixed by the Trustee for such series
pursuant to Section 3.7.
"Stated Maturity", when used with respect to any security or any
installment of principal thereof or interest thereon, means the date specified
in such security representing such installment of interest as the fixed date on
which the principal of such security or such installment of principal or
interest is due and payable.
"Subsidiary" means any corporation of which at least a majority of all
outstanding stock having ordinary voting power in the election of directors of
such corporation is at the time, directly or indirectly, owned by the Company or
by one or more Subsidiaries or by the Company and one or more Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument and, subject to the provisions of Article 6 hereof,
shall also include its successors and assigns as Trustee hereunder. If there
shall be at one time more than one Trustee hereunder, "Trustee" shall mean each
such Trustee and shall apply to each such Trustee only with respect to those
series of Debt Securities with respect to which it is serving as Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this Indenture was executed, except as provided in
Section 9.5 hereof and except that any rules and regulations subsequently
prescribed by the Commission pursuant to Section 314(a) of that Act shall apply.
"U.S. Depositary" means a clearing agency registered under the Exchange
Act, or any successor thereto, which shall in either case be designated by the
Company pursuant to Section 3.1, until a successor U.S. Depositary shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "U.S. Depositary" shall mean or include each Person who is then a
U.S. Depositary hereunder, and if at any time there is more than one such
Person, "U.S. Depositary" as used with respect to the Debt Securities of any
series shall mean the U.S. Depositary with respect to the Debt Securities of
that series.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the government of the United States or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the government of the United States, the payment of which is unconditionally
guaranteed by such government, which, in either case, are full faith and credit
obligations of such government and are not callable or redeemable at the option
of the issuer thereof.
<PAGE> 12
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"United States" means the United States of America (including the
States and the District of Columbia), its territories, possessions and other
areas subject to its jurisdiction (including the Commonwealth of Puerto Rico).
"Yield to Maturity", when used with respect to any Discounted Debt
Security, means the yield to maturity, if any, set forth on the face thereof.
SECTION 1.2 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee for any
series of Debt Securities to take any action under any provision of this
Indenture, the Company shall furnish to such Trustee (i) an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with, (ii) an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, and (iii) if appropriate,
a Certificate of a Firm of Independent Public Accountants; provided, that in the
case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or request, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such condition
or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
<PAGE> 13
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Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows that the certificate or
opinion or representations with respect to matters upon which his certificate or
opinion is based are erroneous.
Any such certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company, unless such
counsel knows that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4 Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the
Trustee for the appropriate series of Debt Securities and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Debt Security, shall be sufficient for any
purpose of this Indenture and (subject to Section 6.1) conclusive in favor of
the Trustee for the appropriate series of Debt Securities and the Company and
any agent of such Trustee or the Company, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by an officer of a corporation or association or a member of a
partnership, or an official of a public or governmental body, on behalf of such
corporation, association, partnership or public or governmental body or by a
fiduciary, such certificate or affidavit shall also constitute sufficient proof
of his authority.
(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee for the appropriate series
of Debt Securities deems sufficient.
<PAGE> 14
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(d) The principal amount and serial numbers of Debt Securities held by
any Person, and the date of holding the same, shall be proved by the Debt
Security Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Debt Security shall bind every
future Holder of the same Debt Security and the Holder of every Debt Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustee for such Debt Securities, the Debt Security Registrar, any Paying Agent
or the Company in reliance thereon, whether or not notation of such action is
made upon such Debt Security.
SECTION 1.5 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other documents provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee for a series of Debt Securities by any Holder or by the
Company shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with such Trustee at its Corporate Trust
Office, Attention: Corporate Trustee Administration Department, or
(2) the Company by such Trustee or by any Holder shall be sufficient
for every purpose hereunder if in writing and mailed, first class postage
prepaid, to the Company addressed to it at the address of its principal office
specified in the first paragraph of this instrument or at any other address
previously furnished in writing to such Trustee by the Company (except as
provided in paragraphs (3), (4) and (5) of Section 5.1.
SECTION 1.6 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
to Holders if in writing and mailed, first class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Debt Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice.
In any case where notice to Holders of Debt Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Any notice mailed in the manner prescribed by
this Indenture shall be deemed to have been given whether or not received by any
particular Holder. In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give such notice to
Holders by mail, then such notification as shall be made with the approval of
the Trustee for such Debt Securities shall constitute a sufficient notification
for every purpose hereunder.
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Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee for such
Debt Securities, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
SECTION 1.7 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 310 through 317, inclusive, of the Trust Indenture
Act through the operation of Section 318(c) thereof, such imposed duties shall
control.
SECTION 1.8 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.9 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.10 Separability Clause.
In any case any provision in this Indenture or in the Debt Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Debt Securities, expressed or
implied, shall give to any Person, other than the parties hereto, any Paying
Agent, any Debt Security Registrar and their successors hereunder and the
Holders of Debt Securities, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 1.12 Governing Law.
THIS INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF OHIO WITHOUT REGARD TO THE CONFLICTS OF LAW RULES OF
SUCH STATE. THIS INDENTURE IS SUBJECT TO THE PROVISIONS OF THE TRUST INDENTURE
ACT OF 1939, AS AMENDED, THAT ARE REQUIRED TO BE PART OF THIS INDENTURE AND
SHALL, TO THE EXTENT APPLICABLE, BE GOVERNED BY SUCH PROVISIONS.
<PAGE> 16
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SECTION 1.13 Non-Business Day.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of a Debt Security of any particular series shall not be a Business Day
at any Place of Payment with respect to Debt Securities of that series, then
(notwithstanding any other provision of this Indenture or of the Debt
Securities) payment of principal of (and premium, if any) and interest, if any,
with respect to such Debt Security need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption Date
or Stated Maturity, as the case may be.
SECTION 1.14 Immunity of Incorporators, Shareholders, Officers and
Directors.
No recourse shall be had for the payment of the principal of (and
premium, if any), or the interest, if any, on any Debt Security of any series,
or for any claim based thereon, or upon any obligation, covenant or agreement of
this Indenture, against any incorporator, shareholder, officer or director, as
such, past, present or future, of the Company or the Guarantor or of any
successor corporation, either directly or indirectly through the Company or the
Guarantor or any successor corporation, whether by virtue of any constitution,
statute or rule of law or by the enforcement of any assessment of penalty or
otherwise; it being expressly agreed and understood that this Indenture and all
the Debt Securities of each series are solely corporate obligations, and that no
personal liability whatever shall attach to, or is incurred by, any
incorporator, shareholder, officer or director, past, present or future, of the
Company or the Guarantor or of any successor corporation, either directly or
indirectly through the Company or the Guarantor or any successor corporation,
because of the incurring of the indebtedness hereby authorized or under or by
reason of any of the obligations, covenants or agreements contained in this
Indenture or in any of the Debt Securities of any series, or to be implied
herefrom or therefrom; and that all such personal liability is hereby expressly
released and waived as a condition of, and as part of the consideration for, the
execution of this Indenture and the issuance of the Debt Securities of each
series.
ARTICLE 2.
DEBT SECURITY FORM
SECTION 2.1 Form of Debt Securities.
The Debt Securities of each series shall be in substantially the forms
set forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Debt Securities, as evidenced by their
<PAGE> 17
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execution of the Debt Securities. If the form of Debt Securities of any series
is established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 3.3 for the
authentication and delivery of such Securities.
Prior to the delivery of a Debt Security of any series in any such form
to the Trustee for the Debt Securities of such series for authentication, the
Company shall deliver to such Trustee the following:
(1) The Board Resolution by or pursuant to which such form of Debt
Security has been approved;
(2) An Officers' Certificate dated the date such Certificate is
delivered to such Trustee stating that all conditions precedent provided for in
this Indenture relating to the authentication and delivery of Debt Securities in
such form have been complied with; and
(3) An Opinion of Counsel stating that Debt Securities in such form,
when (a) completed by appropriate insertions and executed and delivered by the
Company and Guarantor to such Trustee in accordance with this Indenture, (b)
authenticated and delivered by such Trustee in accordance with this Indenture
within the authorization as to aggregate principal amount established from time
to time by the Board of Directors and (c) issued in the manner specified in such
Opinion of Counsel, will be the legal, valid and binding obligations of the
Company and Guarantor, subject to applicable bankruptcy, reorganization,
insolvency and other similar laws generally affecting creditors' rights, to
general equitable principles and to such other qualifications as such counsel
shall conclude do not materially affect the rights of Holders of such Debt
Securities.
The definitive Debt Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Debt Securities, as evidenced by their
execution thereof.
SECTION 2.2 Form of Trustee's Certificate of Authentication.
The Certificate of Authentication on all Debt Securities shall be in
substantially the following form:
"This is one of the Debt Securities, of the series designated
herein, described in the within-mentioned Indenture.
STAR BANK, N.A., as Trustee
By
----------------------------------------
Authorized Officer"
<PAGE> 18
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SECTION 2.3 Unconditional Guarantee.
Each Debt Security shall contain the following form of unconditional
guarantee:
FOR VALUE RECEIVED, the Guarantor hereby unconditionally guarantees to
the holder of the Debt Security upon which this Guarantee is endorsed the due
and punctual payment of the principal or interest on said Debt Security, when
and as the same shall become due and payable, whether at maturity, upon
redemption or otherwise, according to the terms thereof and of the Indenture
referred to therein.
The Guarantor agrees to determine, at least one Business Day prior to
the date upon which a payment of principal of or interest on said Debt Security
is due and payable, whether the Company has available the funds to make such
payment as the same shall become due and payable. In case of the failure of the
Company punctually to pay any such principal, premium, if any, or interest, the
Guarantor hereby agrees to cause any such payment to be made punctually when and
as the same shall become due and payable, whether at maturity, upon redemption,
or otherwise, and as if such payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrevocable, and absolute, irrespective of the validity,
regularity, or enforceability of said Debt Security or said Indenture, the
absence of any action to enforce the same, any waiver or consent by the Holder
of said Debt Security with respect to any provisions thereof, the recovery of
any judgment against the Company or any action to enforce the same, or any other
circumstance which might otherwise constitute a legal or equitable discharge or
equitable discharge or defense of a guarantor. The Guarantor hereby waives
diligence, presentment, bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect to said
Debt Security or indebtedness evidenced thereby, and all demands whatsoever and
covenants that this Guarantee will not be discharged except by complete
performance of the obligations contained in said Security and in this Guarantee.
The Guarantor shall be subrogated to all rights of the holder of said
Debt Security against the Company in respect of any amounts paid by the
Guarantor pursuant to the provisions of this Guarantee; provided, however, that
the Guarantor shall not, without the consent of the holders of all of the Debt
Securities then outstanding, be entitled to enforce or to receive any payments
arising out of or based upon such right of subrogation until the principal of
and premium, if any, and interest on all Debt Securities shall have been paid in
full or payment thereof shall have been provided for in accordance with said
Indenture.
Notwithstanding anything to the contrary contained herein, if following
any payment of principal or interest by the Company on the Debt Securities to
the holders of the Debt Securities it is determined by a final decision of a
court of competent jurisdiction that such payment shall be avoided by a trustee
in bankruptcy (including any debtor-in-possession) as a preference under 11
U.S.C. Section 547 and such payment is paid by such holder to such trustee in
bankruptcy, then and
<PAGE> 19
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to the extent of such repayment, the obligations of the Guarantor hereunder
shall remain in full force and effect.
This Guarantee shall not be valid or become obligatory for any purpose
with respect to a Debt Security until the certificate of authentication on such
Security shall have been signed by the Trustee (or the Authentication Agent).
This Guarantee shall be governed by the laws of the State of Ohio
without regard to conflicts of laws principles thereof.
IN WITNESS WHEREOF, American Annuity Group, Inc. has caused this
Guarantee to be signed in its corporate name by the facsimile signature of two
of its officers thereunto duly authorized and has caused a facsimile of its
corporate seal to be affixed hereunto or imprinted or otherwise reproduced
hereon.
[SEAL] AMERICAN ANNUITY GROUP, INC.
By:____________________________
Name:__________________________
Title:________________________
Attest:______________________
SECTION 2.4 Assumption by Guarantor.
The Guarantor may, without the consent of the Holders, assume all of
the rights and obligations of the Company hereunder with respect to the Debt
Securities if, after giving effect to such assumption, no Event of Default shall
have occurred and be continuing. Upon such an assumption, the Guarantor shall
execute a supplemental indenture evidencing its assumption of all such rights
and obligations of the Company and the Company shall be released from its
liabilities hereunder and under such Debt Securities as obligor.
SECTION 2.5 Debt Securities in Global Form.
If any Debt Security of a series is issuable in global form, such Debt
Security may provide that it shall represent the aggregate amount of Outstanding
Debt Securities from time to time endorsed thereon and may also provide that the
aggregate amount of Outstanding Debt Securities represented thereby may from
time to time be reduced to reflect exchanges. Any endorsement of a Global
Security to reflect the amount, or any increase or decrease in the amount, of
Outstanding Debt Securities represented thereby shall be made by the Trustee and
in such manner as shall be specified in such Global Security. Any instructions
by the Company with respect to a Global Security, after its initial issuance,
shall be in writing but need not comply with Section 1.2. Global Securities may
be issued in either temporary or permanent form.
<PAGE> 20
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None of the Company, the Guarantor, the Trustee, any Paying Agent or
the Debt Security Registrar will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
ARTICLE 3.
THE DEBT SECURITIES
SECTION 3.1 Title; Payment and Terms.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered and Outstanding under this Indenture is unlimited.
The Debt Securities may be issued up to the aggregate principal amount of Debt
Securities from time to time authorized by or pursuant to a Board Resolution.
The Debt Securities may be issued in one or more series, each of which
shall be issued pursuant to a Board Resolution. With respect to any particular
series of Debt Securities, the Board Resolution relating thereto shall specify:
(1) the title of the Debt Securities of that series (which shall
distinguish the Debt Securities of that series from all other series of Debt
Securities);
(2) any limit upon the aggregate principal amount of the Debt
Securities of that series which may be authenticated and delivered under this
Indenture (except for Debt Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Debt
Securities of that series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.7 or
otherwise pursuant to any covenant permitting the purchase of a portion of the
Debt Securities of that series);
(3) the date or dates (or manner of determining the same) on which the
principal of the Debt Securities of that series is payable (which, if so
provided in such Board Resolution, may be determined by the Company from time to
time and set forth in the Debt Securities of the series issued from time to
time);
(4) the rate or rates (or the manner of calculation thereof) at which
the Debt Securities of that series shall bear interest (if any), the date or
dates from which such interest shall accrue (which, in either case or both, if
so provided in such Board Resolution, may be determined by the Company from time
to time and set forth in the Debt Securities of the series issued from time to
time), the Interest Payment Dates on which such interest shall be payable (or
manner of determining the same) and the Regular Record Date for the interest
payable on any Debt Securities on any Interest Payment Date;
<PAGE> 21
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(5) the place or places where, subject to the provisions of Section
10.2, the principal of (and premium, if any) and interest, if any, on Debt
Securities of that series shall be payable, any Debt Securities of that series
may be surrendered for registration of transfer, any Debt Securities of that
series may be surrendered for exchange, and notices and demands to or upon the
Company in respect of the Debt Securities of that series and this Indenture may
be served;
(6) the period or periods within which, the price or prices at which
and the terms and conditions upon which Debt Securities of that series may be
redeemed, in whole or in part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem or purchase Debt
Securities of that series pursuant to any sinking fund or analogous provisions
or at the option of a Holder thereof, and the period or periods within which,
the price or prices at which and the terms and conditions upon which, Debt
Securities of that series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(8) the denominations in which any Debt Securities of that series shall
be issuable, if other than denominations of $1,000 and any integral multiple
thereof;
(9) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of that series which shall be payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.2;
(10) any addition to, or modification or deletion of, any Events of
Default or covenants of the Company with respect to the Debt Securities of that
series, whether or not such Events of Default or covenants are consistent with
the Events of Default or covenants set forth herein;
(11) if a Person other than Star Bank, N.A. is to act as Trustee for
the Debt Securities of that series, the name and location of the Corporate Trust
Office of such Trustee;
(12) if other than as set forth in Section 4.1, provisions for the
satisfaction and discharge of this Indenture with respect to the Debt Securities
of that series;
(13) any provision relating to the defeasance of the obligations of the
Company in connection with the Debt Securities of that series;
(14) any provisions regarding exchangeability or conversion of the Debt
Securities of that series;
(15) whether the Debt Securities of the series shall be issued in whole
or in part in the form of one or more Global Securities and, in such case, the
U.S. Depositary for such Global Security or Securities; whether such global form
shall be permanent or temporary; the manner in which and the circumstances under
which Global Securities representing Debt Securities of the series may be
exchanged for Debt Securities in definitive form, if other than, or in addition
to, the
<PAGE> 22
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manner and circumstances specified in Section 3.5 hereof; the extent to which,
or the manner in which, any interest payable on any Global Security on any
Interest Payment Date will be paid, if other than in the manner provided in
Section 3.7; the manner in which the principal of, or premium, if any, on, any
Global Security will be paid, if other than as set forth elsewhere herein; and
(16) any other terms of that series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any particular series shall be substantially
identical except as to denomination, rate of interest, Stated Maturity and the
date from which interest, if any, shall accrue, and except as may otherwise be
provided in or pursuant to such Board Resolution relating thereto. The terms of
such Debt Securities, as set forth above, may be determined by the Company from
time to time if so provided in or established pursuant to the authority granted
in a Board Resolution. Any of the terms of the Debt Securities, as set forth
above, may be made dependent upon facts ascertainable outside the Board
Resolution provided that the manner in which said facts shall operate upon the
terms is set forth in the Board Resolution. All Debt Securities of any one
series need not be issued at the same time, and unless otherwise provided, a
series may be reopened for issuance of additional Debt Securities of such
series.
SECTION 3.2 Denominations.
Unless otherwise provided with respect to any series of Debt Securities
as contemplated by Section 3.1, all Debt Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 3.3 Execution, Authentication, Delivery and Dating.
The Debt Securities shall be executed on behalf of the Company and the
Guarantor by their respective Chairman of the Board, a Vice Chairman of the
Board, or its President, a Co-President or one of its Vice Presidents. The Debt
Securities shall be so executed under their corporate seal reproduced thereon
and attested to by its Secretary or any one of its Assistant Secretaries. The
signature of any of these officers on the Debt Securities may be manual or
facsimile.
Debt Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company or the
Guarantor shall bind the Company or the Guarantor, as the case may be,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Debt Securities or did
not hold such offices at the date of such Debt Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debt Securities of any series executed
by the Company to the Trustee for the Debt Securities of such series for
authentication, together with a Company Order for the authentication and
delivery of such Debt Securities, and such Trustee, in accordance with the
Company Order, shall authenticate and deliver such Debt Securities. If all the
Debt Securities of
<PAGE> 23
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any one series are not to be issued at one time and if a Board Resolution
relating to such Debt Securities shall so permit, such Company Order may set
forth procedures acceptable to the Trustee for the issuance of such Debt
Securities, including, without limitation, procedures with respect to interest
rate, Stated Maturity, date of issuance and date from which interest, if any,
shall accrue.
Notwithstanding any contrary provision herein, if all Debt Securities
of a series are not to be originally issued at one time, it shall not be
necessary to deliver the Board Resolution, Officers' Certificate and Opinion of
Counsel otherwise required pursuant to Sections 1.2 and 2.1 at or prior to the
time of authentication of each Debt Security of such series if such documents
are delivered at or prior to the authentication upon original issuance of the
first Debt Security of such series to be issued.
Each Debt Security shall be dated the date of its authentication.
No Debt Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Debt
Security a certificate of authentication substantially in the form provided for
herein manually executed by the Trustee for such Debt Security or on its behalf
pursuant to Section 6.14, and such certificate upon any Debt Security shall be
conclusive evidence, and the only evidence, that such Debt Security has been
duly authenticated and delivered hereunder.
If the Company shall establish pursuant to Section 3.1 that the Debt
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee shall,
in accordance with Section 3.3 and the Company Order with respect to such
series, authenticate and deliver one or more Global Securities in temporary or
permanent form that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the Outstanding Debt Securities of
such series to be represented by one or more Global Securities, (ii) shall be
registered in the name of the U.S. Depositary for such Global Security or
Securities or the nominee of such depositary, and (iii) shall bear a legend
substantially to the following effect: "This Debt Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary, unless and until this Debt Security is
exchanged in whole or in part for Debt Securities in definitive form" and such
other legend as may be required by the U.S. Depositary.
SECTION 3.4 Temporary Debt Securities and Exchange of Debt Securities.
Pending the preparation of definitive Debt Securities of any particular
series, the Company may execute, and upon Company Order the Trustee for the Debt
Securities of such series shall authenticate and deliver, temporary Debt
Securities which are printed, lithographed, typewritten, photocopied or
otherwise produced, in any denomination, with like terms and conditions as the
definitive Debt Securities of like series in lieu of which they are issued, and
with such appropriate
<PAGE> 24
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insertions, omissions, substitutions and other variations as the officers
executing such Debt Securities may determine, as evidenced by their execution of
such Debt Securities.
If temporary Debt Securities of any particular series are issued, the
Company will cause definitive Debt Securities of that series to be prepared
without unreasonable delay. After the preparation of such definitive Debt
Securities, the temporary Debt Securities of such series shall be exchangeable
for such definitive Debt Securities and of a like Stated Maturity and with like
terms and provisions upon surrender of the temporary Debt Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Debt Securities of any particular series, the Company shall
execute and (in accordance with a Company Order delivered at or prior to the
authentication of the first definitive Debt Security of such series) the Trustee
for the Debt Securities of such series shall authenticate and deliver in
exchange therefor a like principal amount of definitive Debt Securities of
authorized denominations of the same series and of a like Stated Maturity and
with like terms and provisions. Until exchanged as hereinabove provided, the
temporary Debt Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Debt Securities of the same
series and with like terms and conditions authenticated and delivered hereunder.
SECTION 3.5 Registration, Registration of Transfer and Exchange.
The Company shall keep or cause to be kept for the Debt Securities of
each series a register (the register maintained in such office being herein
sometimes referred to as the "Debt Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration, registration of transfer and exchange of Debt Securities.
Securities Transfer Company is hereby initially appointed "Debt Security
Registrar" for such purposes.
Upon surrender for registration of transfer of any Debt Security of any
particular series at the office or agency of the Company in a Place of Payment
for that series, the Company shall execute, and the Trustee for the Debt
Securities of each series shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Debt Securities of any
authorized denominations, and of a like Stated Maturity and of a like series and
aggregate principal amount and with like terms and conditions.
Except as set forth below, at the option of the Holder, Debt Securities
of any particular series may be exchanged for other Debt Securities of any
authorized denominations, and of a like Stated Maturity and of a like series and
aggregate principal amount and with like terms and conditions, upon surrender of
the Debt Securities to be exchanged at such office or agency. Whenever any Debt
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee for such Debt Securities shall authenticate and deliver, the Debt
Securities which the Holder making the exchange is entitled to receive.
<PAGE> 25
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All Debt Securities issued upon any registration of transfer or
exchange of Debt Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities surrendered upon such registration of transfer
or exchange.
Every Debt Security presented or surrendered for registration of
transfer or exchange shall (if so required by the Company or the Trustee for
such Debt Security) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Debt Security Registrar
for such series duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Debt Securities,
other than exchanges pursuant to Section 3.4, 9.6, 11.3 or 11.7 not involving
any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Debt Securities of any series during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Debt Securities of that series selected for redemption under
Section 11.5 and ending at the close of business on the day of the mailing of
the relevant notice of redemption, or (ii) to register the transfer of or
exchange any Debt Security so selected for redemption as a whole or in part,
except the unredeemed portion of any Debt Security being redeemed in part.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for Debt Securities in definitive form, a
Global Security representing all or a portion of the Debt Securities of a series
may not be transferred except as a whole by the U.S. Depositary for such series
to a nominee of such U.S. Depositary or by a nominee of such U.S. Depositary to
such depositary or another nominee of such U.S. Depositary or by such U.S.
Depositary or any other such nominee to a successor U.S. Depositary for such
series or a nominee of such successor U.S. Depositary.
If at any time the U.S. Depositary for the Debt Securities of a series
notifies the Company that it is unwilling or unable to continue as U.S.
Depositary for the Debt Securities of such series or if at any time the U.S.
Depositary for Debt Securities of such series shall no longer be a clearing
agency registered and in good standing under the Exchange Act or other
applicable statute or regulation, the Company shall appoint a successor U.S.
Depositary for the Debt Securities of such series. If a successor U.S.
Depositary for the Debt Securities is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such condition,
the Company will execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Debt Securities of such series,
will authenticate and deliver, Debt Securities of such series in definitive form
in an aggregate principal amount equal to the principal amount of
<PAGE> 26
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the Global Security or Securities representing such series in exchange for such
Global Security or Securities.
The Company may at any time and in its sole discretion determine that
the Debt Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities.
In such event, the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Debt Securities
of such series, will authenticate and deliver, Debt Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing such series in exchange
for such Global Security or Securities.
If the Debt Securities of any series shall have been issued in the form
of one or more Global Securities and if an Event of Default with respect to the
Debt Securities of such series shall have occurred and be continuing, the
Company will promptly execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and deliver Debt Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing such series in exchange
for such Global Security or Securities.
If specified by the Company pursuant to Section 3.1 with respect to the
Debt Securities of a series, the U.S. Depositary for such series of Debt
Securities may surrender a Global Security for such series of Debt Securities in
exchange in whole or in part for Debt Securities of such series of like tenor
and terms and in definitive form on such terms as are acceptable to the Company
and such U.S. Depositary. Thereupon, the Company shall execute and the Trustee
shall authenticate and deliver, without charge:
(i) to each Person specified by the U.S. Depositary a new Debt
Security or Securities of the same series, of like tenor and terms and
of any authorized denomination as requested by such Person in an
aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the Global Security; and
(ii) to the U.S. Depositary a new Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal
amount of the Debt Securities delivered to Holders thereof.
Upon the exchange of a Global Security for Debt Securities in
definitive form, such Global Security shall be canceled by the Trustee.
Definitive Debt 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 U.S. Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such definitive Debt Securities
to the Persons in whose names such Debt Securities are so registered.
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SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Debt Securities.
If (i) any mutilated Debt Security is surrendered to the Trustee for
such Debt Security, or the Company and the Trustee for a Debt Security receive
evidence to their satisfaction of the destruction, loss or theft of any Debt
Security, and (ii) there is delivered to the Company, the Debt Security
Registrar and such Trustee such security or indemnity as may be required by them
to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or such Trustee that such Debt Security has
been acquired by a bona fide purchaser, the Company shall execute and upon its
request such Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Debt Security or in exchange for such mutilated Debt
Security, a new Debt Security of the same series and in a like principal amount
and of a like Stated Maturity and with like terms and conditions and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Debt Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Debt Security, pay such Debt Security (without
surrender thereof except in the case of a mutilated Debt Security) if the
applicant for such payment shall furnish to the Company, the Debt Security
Registrar and the Trustee for such Debt Security such security or indemnity as
may be required by them to save each of them harmless, and in case of
destruction, loss or theft, evidence satisfactory to the Company and such
Trustee and any agent of either of them of the destruction, loss or theft of
such Debt Security and the ownership thereof.
Upon the issuance of any new Debt Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including all fees and expenses of the Trustee and the Debt Security
Registrar for such Debt Security) connected therewith.
Every new Debt Security of any series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Debt Security or in exchange for any
mutilated Debt Security shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Debt
Security shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Debt Securities of the same series, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) the assertion of any Holder of all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Debt Securities.
SECTION 3.7 Payment of Interest; Interest Rights Preserved.
Interest on any Debt Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall, if so provided in such
Debt Security, be paid to the Person in whose name that Debt Security (or one or
more Predecessor Debt Securities) is registered at the close of business on the
Regular Record Date for such interest payment.
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Unless otherwise provided with respect to the Debt Securities of any
series, payment of interest may be made at the option of the Company by check
mailed or delivered to the address of the Person entitled thereto as such
address shall appear in the Debt Security Register or by transfer to an account
maintained by the payee with a bank located inside the United States.
Any interest on any Debt Security of any particular series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the registered Holder on the relevant Regular Record Date by virtue
of having been such Holder; and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Debt Securities of that series (or their
respective Predecessor Debt Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee for the
Debt Securities of such series in writing of the amount of Defaulted Interest
proposed to be paid on each Debt Security of that series and the date of the
proposed payment, and at the same time the Company shall deposit with such
Trustee an amount of money (except as otherwise specified pursuant to Section
3.1 for the Debt Securities of such series) equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to such Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon such Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall not be more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by such Trustee of the notice of the proposed payment. Such
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Debt Securities of that
series at such Holder's address as it appears in the Debt Security Register not
less than 10 days prior to such Special Record Date. Such Trustee may, in its
discretion, in the name and at the expense of the Company, cause a similar
notice to be published at least once in a newspaper published in the English
language customarily on each Business Day and of general circulation in New
York, New York, but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names the Debt Securities of that series (or their respective Predecessor Debt
Securities) are registered on such Special Record Date and shall no longer be
payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on Debt
Securities of any particular series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Debt Securities
may be listed, and upon such notice as may be required by such exchange, if,
after notice is given by the Company to the Trustee for the Debt Securities of
such
<PAGE> 29
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series of the proposed manner of payment pursuant to this clause, such manner of
payment shall be deemed practicable by such Trustee.
Subject to the foregoing provisions of this Section and Section 3.5,
each Debt Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Debt Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Debt Security.
SECTION 3.8 Persons Deemed Owners.
Prior to due presentment of a Debt Security for registration of
transfer, the Company, the Trustee for such Debt Security and any agent of the
Company or such Trustee may treat the Person in whose name any such Debt
Security is registered as the owner of such Debt Security for the purpose of
receiving payment of principal of (and premium, if any) and (subject to Section
3.7) interest, if any, on such Debt Security and for all other purposes
whatsoever, whether or not such Debt Security be overdue, and neither the
Company, such Trustee nor any agent of the Company or such Trustee shall be
affected by notice to the contrary.
SECTION 3.9 Cancellation.
All Debt Securities surrendered for payment, redemption, registration
of transfer or exchange, or delivered in satisfaction of any sinking fund
payment, shall, if surrendered to any Person other than the Trustee for such
Debt Securities, be delivered to such Trustee and shall be promptly canceled by
the Trustee. The Company may at any time deliver to the Trustee for Debt
Securities of a series for cancellation any Debt Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Debt Securities so delivered shall be promptly
canceled by such Trustee. Notwithstanding any other provision of this Indenture
to the contrary, in the case of a series, all the Debt Securities of which are
not to be originally issued at one time, a Debt Security of such series shall
not be deemed to have been Outstanding at any time hereunder if and to the
extent that, subsequent to the authentication and delivery thereof, such Debt
Security is delivered to the Trustee for such Debt Security for cancellation by
the Company or any agent thereof upon the failure of the original purchaser
thereof to make payment therefor against delivery thereof, and any Debt Security
so delivered to such Trustee shall be promptly canceled by it. No Debt
Securities shall be authenticated in lieu of or in exchange for any Debt
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Debt Securities held by the Trustee for such
Debt Securities shall be disposed of by such Trustee in accordance with its
standard procedures and a certificate of disposition evidencing such disposition
of Debt Securities shall be provided to the Company by such Trustee.
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SECTION 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for Debt
Securities of any particular series, interest on the Debt Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE 4.
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Debt Securities of any
Series.
(a) The Company shall be deemed to have satisfied and
discharged the entire indebtedness on all the Debt Securities of any particular
series and, so long as no Event of Default shall be continuing, the Trustee for
the Debt Securities of such series, upon Company Request and at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of such indebtedness, when:
(1) either
(A) all Debt Securities of such series theretofore
authenticated and delivered (other than (i) any Debt Securities of such series
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.6 and (ii) Debt Securities of such series for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in the last paragraph of Section 10.3) have been
delivered to such Trustee for cancellation; or
(B) with respect to all Outstanding Debt Securities of such
series described in (A) above not theretofore so delivered to the Trustee for
the Debt Securities of such series for cancellation:
(i) the Company has deposited or caused to
be deposited with such Trustee as trust funds in
trust an amount (except as otherwise specified
pursuant to Section 3.1 for the Debt Securities of
such series), sufficient to pay and discharge the
entire indebtedness on all such Outstanding Debt
Securities of such series for principal (and premium,
if any) and interest, if any, to the Stated Maturity
or any Redemption Date as contemplated by Section
4.2, as the case may be; or
(ii) the Company has deposited or caused to
be deposited with such Trustee as obligations in
trust such amount of U.S. Government Obligations as
will, as evidenced by a Certificate of a Firm of
Independent
<PAGE> 31
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Public Accountants delivered to such Trustee,
together with the predetermined and certain income to
accrue thereon (without consideration of any
reinvestment thereof), be sufficient to pay and
discharge when due the entire indebtedness on all
such Outstanding Debt Securities of such series for
unpaid principal (and premium, if any) and interest,
if any, to the Stated Maturity or any Redemption Date
as contemplated by Section 4.2, as the case may be;
or
(iii) the Company has deposited or caused to
be deposited with such Trustee in trust an amount
equal to the amount referred to in clause (i) or (ii)
in any combination;
(2) the Company has paid or caused to be paid all other sums
payable with respect to the Debt Securities of such series;
(3) the Company has delivered to such Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of the
entire indebtedness on all Debt Securities of such series have been complied
with; and
(4) if the Debt Securities of such series are not to become
due and payable at their Stated Maturity within one year of the date of such
deposit or are not to be called for redemption within one year of the date of
such deposit under arrangements satisfactory to such Trustee as of the date of
such deposit, then the Company shall have given, not later than the date of such
deposit, notice of such deposit to the Holders of such Debt Securities.
(b) Upon the satisfaction of the conditions set forth in this Section
4.1 with respect to all the Debt Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company, and the Holders of the Debt Securities of such
series shall look for payment only to the funds or obligations deposited with
the Trustee pursuant to Section 4.1(a)(1)(B); provided, however, that in no
event shall the Company be discharged from (i) any payment obligations in
respect of Debt Securities of such series which are deemed not to be Outstanding
under clause (3) of the definition thereof if such obligations continue to be
valid obligations of the Company under applicable law, (ii) from any obligations
under Sections 4.2(b), 6.7 and 6.10 and (iii) from any obligations under
Sections 3.5 and 3.63.6 (except that Debt Securities of such series issued upon
registration of transfer or exchange or in lieu of mutilated, destroyed, lost or
stolen Debt Securities shall not be obligations of the Company) and Sections 7.1
and 10.2; and provided, further, that in the event a petition for relief under
the Bankruptcy Act of 1978 or Title 11 of the United States Code or a successor
statute is filed and not discharged with respect to the Company within 91 days
after the deposit, the entire indebtedness on all Debt Securities of such series
shall not be discharged, and in such event the Trustee shall return such
deposited funds or obligations as it is then holding to the Company upon Company
Request.
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SECTION 4.2 Application of Trust Money.
(a) All money and obligations deposited with the Trustee for any series
of Debt Securities pursuant to Section 4.1 shall be held irrevocably in trust
and shall be made under the terms of an escrow trust agreement in form
satisfactory to such Trustee. Such money and obligations shall be applied by
such Trustee, in accordance with the provisions of the Debt Securities, this
Indenture and such escrow trust agreement, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as such Trustee may determine, to the Persons entitled thereto, of the principal
of (and premium, if any) and interest, if any, on the Debt Securities for the
payment of which such money and obligations have been deposited with such
Trustee. If Debt Securities of any series are to be redeemed prior to their
Stated Maturity, whether pursuant to any optional redemption provisions or in
accordance with any mandatory sinking fund requirement, the Company shall make
such arrangements as are satisfactory to the Trustee for such series of Debt
Securities for the giving of notice of redemption by such Trustee in the name,
and at the expense, of the Company.
(b) The Company shall pay and shall indemnify the Trustee for any
series of Debt Securities against any tax, fee or other charge imposed on or
assessed against U.S. Government Obligations deposited pursuant to Section 4.1
or the interest and principal received in respect of such U.S. Government
Obligations other than any such tax, fee or other charge which by law is payable
by or on behalf of Holders. The obligation of the Company under this Section
4.2(b) shall be deemed to be an obligation of the Company under Section 6.7(2).
(c) Anything in this Article Four to the contrary notwithstanding, the
Trustee for any series of Debt Securities shall deliver or pay to the Company
from time to time upon Company Request any money or U.S. Government Obligations
held by it as provided in Section 4.1 which, as expressed in a Certificate of a
Firm of Independent Public Accountants delivered to such Trustee, are in excess
of the amount thereof which would then have been required to be deposited for
the purpose for which such money or U.S. Government Obligations were deposited
or received provided such delivery can be made without liquidating any U.S.
Government Obligations.
SECTION 4.3 Satisfaction and Discharge of Indenture.
Upon compliance by the Company with the provisions of Section 4.1 as to
the satisfaction and discharge of each series of Debt Securities issued
hereunder, and if the Company has paid or caused to be paid all other sums
payable under this Indenture, this Indenture shall cease to be of any further
effect (except as otherwise provided herein). Upon Company Request and receipt
of an Opinion of Counsel and an Officers' Certificate complying with the
provisions of Section 1.2, the Trustees for all series of Debt Securities (at
the expense of the Company) shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture.
Notwithstanding the satisfaction and discharge of this Indenture, any
obligations of the Company under Sections 3.4, 3.5, 3.6, 4.2(b), 6.7, 6.10, 7.1
and 10.2 and the obligations of the Trustee for any series of Debt Securities
under Section 4.2 shall survive.
<PAGE> 33
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SECTION 4.4 Reinstatement.
If the Trustee for any series of Debt Securities is unable to apply any
of the amounts (for purposes of this Section 4.4, "Amounts") or U.S. Government
Obligations, as the case may be, described in Section 4.1(a)(1)(B)(i) or (ii),
respectively, in accordance with the provisions of Section 4.1 by reason of any
legal proceeding or any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Debt Securities of such series shall be
revived and reinstated as though no deposit had occurred pursuant to Section 4.1
until such time as the Trustee for such series is permitted to apply all such
Amounts or U.S. Government Obligations, as the case may be, in accordance with
the provisions of Section 4.1; provided, however, that if, due to the
reinstatement of its rights or obligations hereunder, the Company has made any
payment of principal of (or premium, if any) or interest, if any, on such Debt
Securities, the Company shall be subrogated to the rights of the Holders of such
Debt Securities to receive payment from such Amounts or U.S. Government
Obligations, as the case may be, held by the Trustee for such series.
ARTICLE 5.
REMEDIES
SECTION 5.1 Events of Default.
"Event of Default" wherever used herein with respect to any particular
series of Debt Securities, unless otherwise specified in the Debt Security or
the Board Resolution with respect to that series of Debt Securities, means any
one of the following events (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any installment of interest upon any Debt
Security of that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on)
any Debt Security of that series at its Maturity; or
(3) default in the performance of, or breach of, any covenant or
warranty of the Company in respect of any Debt Security of that series contained
in this Indenture or in such Debt Securities (other than a covenant or warranty
a default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which expressly has been included in this Indenture
solely for the benefit of Debt Securities of a series other than that series) or
in the applicable Board Resolution under which such series is issued as
contemplated by Section 3.1 and continuance of such default or breach for a
period of 60 days after there has been given, by registered or certified mail,
to the Company by the Trustee for the Debt Securities of such series or to the
Company and such Trustee
<PAGE> 34
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by the Holders of at least 25% in principal amount of the Outstanding Debt
Securities of that series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(4) if an event of default with respect to any other series of Debt
Securities or as defined in any mortgage, indenture, security agreement or other
instrument under which there may be issued, or by which there may be secured or
evidenced, any Indebtedness of the Company for money borrowed in excess of $10
million principal amount, whether such Indebtedness now exists or shall
hereafter be created, shall happen and, if such Indebtedness is not already
matured in accordance with its terms, shall result in such Indebtedness becoming
or being declared due and payable prior to the date on which it would otherwise
become due and payable, and such acceleration shall not have been rescinded or
annulled or such Indebtedness shall not have been discharged, in either case,
within a period of ten days after there has been given, by registered or
certified mail in the manner set forth in Section 1.5, to the Company by the
Trustee for the Debt Securities of that particular series referred to in the
first clause of this Section 5.1 or to the Company and such Trustee by the
Holders of at least 25% in principal amount of the Outstanding Debt Securities
of that particular series referred to in the first clause of this Section 5.1 a
written notice specifying such event of default and requiring the Company to
cause such acceleration to be rescinded or annulled or to cause such
Indebtedness to be discharged and stating that such notice is a "Notice of
Default" hereunder; provided, that if prior to the entry of judgment in favor of
the Trustee, such default under such indenture or instrument shall be remedied
or cured by the Company or waived by the holders of such Indebtedness, then the
Event of Default hereunder shall be deemed likewise to have been remedied, cured
or waived; and provided, further, that, if such default results from an action
of the United States government or a foreign government which prevents the
Company from performing its obligations under such agreement, indenture or
instrument, as evidenced by an Officer's Certificate delivered to the Trustee,
the occurrence of such default will not be an Event of Default hereunder; and
provided, further, however, that, subject to the provisions of Sections 6.1 and
6.2, such Trustee shall not be deemed to have knowledge of such default unless
either (A) a Responsible Officer of such Trustee assigned to its Corporate Trust
Office shall have actual knowledge of such default or (B) the Trustee shall have
received written notice thereof from the Company, from the Holders of 10% or
more in principal amount of the Outstanding Debt Securities of such other
series, from the holder of any such Indebtedness or from the trustee under any
such mortgage, indenture, security agreement or other instrument; or
(5) the entry against the Company of one or more judgments, decrees or
orders by a court having jurisdiction in the premises from which no appeal may
be or is taken for the payment of money, either individually or in the
aggregate, in excess of $10 million and the continuance of such judgment, decree
or order unsatisfied and in effect for any period of 60 consecutive days without
a stay of execution and there has been given, by registered or certified mail in
the manner set forth in Section 1.5, to the Company by the Trustee for the Debt
Securities of such series or to the Company and such Trustee by the Holders of
at least 25% in principal amount of the Outstanding Debt Securities of such
series a written notice specifying such entry and continuance of such judgment,
decree or order and stating that such notice is a "Notice of Default" hereunder;
provided, however, that subject to the provisions of Sections 6.1 and 6.2, such
Trustee shall not be deemed to
<PAGE> 35
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have knowledge of such entry and continuance of such judgment, decree or order
unless either (A) a Responsible Officer of such Trustee assigned to its
Corporate Trust Office shall have actual knowledge thereof or (B) the Trustee
shall have received written notice thereof from the Company or from the Holders
of 10% or more in principal amount of the Outstanding Debt Securities of such
series; or
(6) the Company shall commence any case or proceeding seeking to have
an order for relief entered on its behalf as debtor or to adjudicate it as
bankrupt or insolvent or seeking reorganization, liquidation, dissolution,
winding-up, arrangement, composition or readjustment of its debts or any other
relief under any bankruptcy, insolvency, reorganization, liquidation,
dissolution, arrangement, composition, readjustment of debt or other similar act
or law of any jurisdiction, domestic or foreign, now or hereafter existing; or
the Company shall apply for a receiver, custodian or trustee (other than any
trustee appointed as a mortgagee or secured party in connection with the
issuance of indebtedness for borrowed money of the Company) of it or for all or
a substantial part of its property; or the Company shall make a general
assignment for the benefit of creditors; or the Company shall take any corporate
action in furtherance of any of the foregoing; or
(7) any case or proceeding against the Company shall be commenced
seeking to have an order for relief entered against it or to adjudicate it as
bankrupt or insolvent or seeking reorganization, liquidation, dissolution,
winding-up, arrangement, composition or readjustment of its debts or any other
relief under any bankruptcy, insolvency, reorganization, liquidation,
dissolution, arrangement, composition, readjustment of debt or other similar act
or law of any jurisdiction, domestic or foreign, now or hereafter existing; or a
receiver, custodian or trustee (other than any trustee appointed as a mortgagee
or secured party in connection with the issuance of indebtedness for borrowed
money of the Company) of the Company or for all or a substantial part of its
property shall be appointed in any such case or proceeding; and such case or
proceeding (A) results in the entry of an order for relief or a similar order
against it or (B) shall continue unstayed and in effect for a period of 60
consecutive days.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any particular series of Debt
Securities occurs and is continuing, then and in every such case either the
Trustee for the Debt Securities of such series or the Holders of not less than
25% in principal amount of the Outstanding Debt Securities of that series may
declare the entire principal amount (or, in the case of Discounted Debt
Securities, such lesser amount as may be provided for in the terms of that
series) of all the Debt Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to such Trustee if given
by Holders), and upon any such declaration of acceleration such principal or
such lesser amount, as the case may be, together with accrued interest and all
other amounts owing hereunder, shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived.
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At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee for the Debt Securities of any series as hereinafter in this Article
provided, the Holders of a majority in principal amount of the Outstanding Debt
Securities of that series, by written notice to the Company and such Trustee,
may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with such Trustee a sum
sufficient to pay
(A) all overdue interest on all Debt Securities of that series;
(B) the principal of (and premium, if any, on) any Debt Securities of
that series which have become due otherwise than by such declaration of
acceleration and interest thereon from the date such principal became due at a
rate per annum equal to the rate borne by the Debt Securities of such series
(or, in the case of Discounted Debt Securities, the Debt Securities' Yield to
Maturity), to the extent that the payment of such interest shall be legally
enforceable;
(C) to the extent that payment of such interest is lawful, interest
upon overdue interest at a rate per annum equal to the rate borne by the Debt
Securities of such series (or, in the case of Discounted Debt Securities, the
Debt Securities' Yield to Maturity); and
(D) all sums paid or advanced by such Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of such Trustee,
its agents and counsel and all other amounts due to such Trustee under Section
6.7; and
(2) all Events of Default with respect to the Debt Securities of such
series, other than the nonpayment of the principal of Debt Securities of that
series which has become due solely by such acceleration, have been cured or
waived as provided in Section 5.13. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest upon any Debt
Security of any series when such interest becomes due and payable and such
default continues for a period of 30 days; or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Debt Security of any series at its Maturity, the Company will, upon
demand of the Trustee for the Debt Securities of such series, pay to it, for the
benefit of the Holders of such Debt Securities, the whole amount then due and
payable on such Debt Securities for principal (and premium, if any) and
interest, if any, with interest upon the overdue principal (and premium, if any)
and, to the extent that payment of such interest shall be legally enforceable,
upon any overdue installments of interest at a rate per annum equal to the rate
borne by such Debt Securities (or, in the case of Discounted Debt Securities,
the Debt Securities' Yield to Maturity); and, in addition thereto, such further
amount as
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shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of such Trustee,
its agents and counsel and all other amounts due to such Trustee under Section
6.7.
If the Company fails to pay such amounts forthwith upon such demand,
such Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceedings to judgment or final decree, and may enforce the same
against the Company and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the Company, wherever
situated.
If an Event of Default with respect to Debt Securities of any
particular series occurs and is continuing, the Trustee for the Debt Securities
of such series may in its discretion proceed to protect and enforce its rights
and the rights of the Holders of Debt Securities of that series by such
appropriate judicial proceedings as such Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relating to the Company or the property of the Company or
its creditors, the Trustee for the Debt Securities of any series (irrespective
of whether the principal (or lesser amount in the case of Discounted Debt
Securities) of any Debt Security of such series shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether
such Trustee shall have made any demand on the Company for the payment of
overdue principal or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise
(i) to file and prove a claim for the whole amount of
principal (or lesser amount in the case of Discounted Debt
Securities) (and premium, if any) and interest, if any, owing
and unpaid in respect of the Debt Securities of such series
and to file such other papers or documents as may be necessary
or advisable in order to have the claims of such Trustee
(including any claim for the reasonable compensation,
expenses, disbursements and advances of such Trustee, its
agents and counsel and all other amounts due to such Trustee
under Section 6.7) and of the Holders of the Debt Securities
of such series allowed in such judicial proceeding;
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same; and
(iii) unless prohibited by law or applicable
regulations, to vote on behalf of the Holders of the Debt
Securities of such series in any election of a trustee in
bankruptcy or other person performing similar functions; and
any receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is
hereby authorized
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by each Holder of Debt Securities to make such payments to such
Trustee, and in the event that such Trustee shall consent to the making
of such payments directly to the Holders of Debt Securities, to pay to
such Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of such Trustee, its agents and
counsel, and any other amounts due such Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee for
the Debt Securities of any series to authorize or consent to or accept or adopt
on behalf of any Holder of a Debt Security any plan of reorganization,
arrangement, adjustment or composition affecting the Debt Securities of such
series or the rights of any Holder thereof, or to authorize the Trustee for the
Debt Securities of any series to vote in respect of the claim of any Holder in
any such proceeding, except as aforesaid, for the election of a trustee in
bankruptcy or other person performing similar functions.
SECTION 5.5 Trustee May Enforce Claims Without Possession of Debt
Securities.
All rights of action and claims under this Indenture or the Debt
Securities of any series may be prosecuted and enforced by the Trustee for the
Debt Securities of any series without the possession of any of the Debt
Securities of such series or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by such Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of such Trustee, its agents and counsel and all other
amounts due to such Trustee under Section 6.7, be for the ratable benefit of the
Holders of the Debt Securities of such series in respect of which such judgment
has been recovered.
SECTION 5.6 Application of Money Collected.
Any money collected by the Trustee for the Debt Securities of any
series pursuant to this Article with respect to the Debt Securities of such
series shall be applied in the following order, at the date or dates fixed by
such Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, if any, upon presentation of the
Debt Securities of such series and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due such Trustee under
Section 6.7;
Second: To the payment of the amounts then due and unpaid upon
the Debt Securities of such series for principal of (and premium, if
any) and interest, if any, on such Debt Securities in respect of which
or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts
due and payable on such Debt Securities for principal (and premium, if
any) and interest, if any, respectively; and
Third: The balance, if any, to the Person or Persons entitled
thereto.
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SECTION 5.7 Limitation on Suits.
No Holder of any Debt Security of any particular series shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(1) an Event of Default with respect to that series shall have
occurred and be continuing and such Holder shall have previously given
written notice to the Trustee for the Debt Securities of such series of
such default and the continuance thereof;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of that series shall have made written
request to the Trustee for the Debt Securities of such series to
institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to such Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) such Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to such Trustee during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Debt Securities of
that series; it being understood and intended that no Holder or Holders
of Debt Securities of that series shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other
Holders of Debt Securities of that series, or to enforce any right
under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the Holders of Debt Securities of that
series.
SECTION 5.8 Unconditional Right of Holders to Receive Principal (and
Premium, if any) and Interest, if any.
Notwithstanding any other provision in this Indenture, the Holder of
any Debt Security shall have the right which is absolute and unconditional to
receive payment of the principal of (and premium, if any) and (subject to
Section 3.7) interest, if any, on such Debt Security on the respective Stated
Maturities expressed in such Debt Security (or, in the case of redemption, on
the Redemption Date) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder.
<PAGE> 40
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SECTION 5.9 Restoration of Rights and Remedies.
If the Trustee for the Debt Securities of any series or any Holder of a
Debt Security has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to such Trustee or to such Holder, then
and in every such case the Company, such Trustee and the Holders of Debt
Securities shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of such Trustee and such Holders shall continue as
though no such proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Debt Securities in the last paragraph of
Section 3.6, no right or remedy herein conferred upon or reserved to the Trustee
for the Debt Securities of any series or to the Holders of Debt Securities is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee for the Debt Securities of any
series or of any Holder of any Debt Security of such series to exercise any
right or remedy accruing upon any Event of Default with respect to the Debt
Securities of such series shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to such Trustee for the Debt Securities
of any series or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by such Trustee or by the Holders, as the case may
be.
SECTION 5.12 Control by Holders.
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any particular series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee for the Debt Securities of such series with respect to the Debt
Securities of that series or exercising any trust or power conferred on such
Trustee with respect to such Debt Securities, provided that:
(1) such direction shall not be in conflict with any rule of law or
with this Indenture; and
(2) such Trustee may take any other action deemed proper by such
Trustee which is not inconsistent with such direction.
<PAGE> 41
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SECTION 5.13 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any particular series may on behalf of the
Holders of all the Debt Securities of that series waive any past default
hereunder with respect to that series and its consequences, except:
(1) a default in the payment of the principal of (or premium, if any)
or interest, if any, on any Debt Security of that series; or
(2) a default with respect to a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Debt Security of that series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture, and any such waiver shall be binding upon all
subsequent Holders of such Indebtedness; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 5.14 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law, wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee for any series of Debt Securities, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
SECTION 5.15 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Debt
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Debt Securities of such series, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium, if any) or interest on any Debt Security on or after the Stated
Maturity or Maturities expressed in such Debt Security (or, in the case of
redemption, on or after the Redemption Date).
<PAGE> 42
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ARTICLE 6.
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect
to the Debt Securities of any series for which the Trustee is serving as such,
(1) such Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against such Trustee; and
(2) in the absence of bad faith on its part, such
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to such
Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by
any provisions hereof are specifically required to be
furnished to such Trustee, such Trustee shall be under a duty
to examine the same to determine whether or not they conform
to the requirements of this Indenture.
(b) In case an Event of Default with respect to a series of
Debt Securities has occurred and is continuing, the Trustee for the Debt
Securities of such series shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee for Debt Securities of any series from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that no provision of this Indenture shall require the Trustee
for any series of Debt Securities to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee for any series of Debt Securities
shall be subject to the provisions of this Section.
<PAGE> 43
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SECTION 6.2 Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to Debt Securities of any particular series, the Trustee for the Debt
Securities of such series shall give to Holders of Debt Securities of that
series, in the manner set forth in Section 1.6, notice of such default known to
such Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest, if any, on any Debt Security of that
series, or in the deposit of any sinking fund payment with respect to Debt
Securities of that series, such Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of such Trustee in good
faith determines that the withholding of such notice is in the interest of the
Holders of Debt Securities of that series; and provided, further, that in the
case of any default of the character specified in Section 5.1(3) with respect to
Debt Securities of that series no such notice to Holders shall be given until at
least 60 days after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Debt Securities of that
series.
SECTION 6.3 Certain Rights of Trustee.
Except as otherwise provided in Section 6.1:
(a) the Trustee for any series of Debt Securities may rely and
shall be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture such
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, such Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(d) such Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) such Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Debt Securities of any series pursuant to
this Indenture for which it is acting as Trustee, unless such Holders shall have
offered to such Trustee security or indemnity reasonably satisfactory to such
<PAGE> 44
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Trustee against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) such Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture or other paper or document, but such Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters at it may
see fit, and, if such Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney; and
(g) such Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and such Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 6.4 Not Responsible for Recitals or Issuance of Debt
Securities.
The recitals contained herein and in the Debt Securities, except the
Trustee's certificates of authentication thereof, shall be taken as the
statements of the Company, and neither the Trustee for any series of Debt
Securities, nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee for any series of Debt Securities makes no
representations as to the validity or sufficiency of this Indenture or of the
Debt Securities of any series. Neither the Trustee for any series of Debt
Securities nor any Authenticating Agent shall be accountable for the use or
application by the Company of Debt Securities or the proceeds thereof.
SECTION 6.5 May Hold Debt Securities.
The Trustee for any series of Debt Securities, any Authenticating
Agent, Paying Agent, Debt Security Registrar or any other agent of the Company
or such Trustee, in its individual or any other capacity, may become the owner
or pledgee of Debt Securities and, subject to Sections 6.8 and 6.13, may
otherwise deal with the Company with the same rights it would have if it were
not such Trustee, Authenticating Agent, Paying Agent, Debt Security Registrar or
other agent.
SECTION 6.6 Money Held in Trust.
Money held by the Trustee for any series of Debt Securities in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee for any series of Debt Securities shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
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SECTION 6.7 Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee for any series of Debt Securities
from time to time reasonable compensation for all services rendered by
it hereunder (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee for any series of Debt Securities upon its
request for all reasonable expenses, disbursements and advances
incurred or made by such Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify such Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee for any series of Debt Securities shall have a lien
prior to the Debt Securities upon all property and funds held or collected by
such Trustee as such, except funds held in trust for the payment of principal of
(and premium, if any) or interest, if any, on any particular series Debt
Securities. Such lien shall survive satisfaction and discharge of this
Indenture.
SECTION 6.8 Disqualification; Conflicting Interests.
The Trustee for any series of Debt Securities shall be subject to and
comply with the provisions of Section 310(b) of the Trust Indenture Act during
the period of time required thereby. Nothing herein shall prevent the Trustee
for any series of Debt Securities from filing with the Commission the
application referred to in the penultimate paragraph of Section 310(b) of the
Trust Indenture Act. In determining whether the Trustee for any series of Debt
Securities has a conflicting interest as defined in Section 310(b) of the Trust
Indenture Act, the Debt Securities of any other series of Debt Securities shall
be excluded.
SECTION 6.9 Corporate Trustee Required, Different Trustees for
Different Series; Eligibility.
There shall at all times be a Trustee hereunder for the Debt Securities
of each series which satisfies the requirements of Trust Indenture Act Sections
310(a)(1), 310(a)(2) and 310(a)(5), has a combined capital and surplus of at
least $50,000,000 and is subject to supervision or examination
<PAGE> 46
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by Federal, State or District of Columbia authority. A different Trustee may be
appointed by the Company for each series of Debt Securities prior to the
issuance of such Debt Securities. If the initial Trustee for any series of Debt
Securities is to be other than Star Bank, N.A., the Company and such Trustee
shall, prior to the issuance of such Debt Securities, execute and deliver an
indenture supplemental hereto, which shall provide for the appointment of such
Trustee as Trustee for the Debt Securities of such series and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such Trustee.
If at any time the Trustee for the Debt Securities of any series shall cease to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 6.10 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee for the Debt
Securities of any series and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section
6.11.
(b) The Trustee for the Debt Securities of any series may
resign at any time with respect to the Debt Securities of such series by giving
written notice thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 6.11 shall not have been delivered to the
Trustee for the Debt Securities of such series within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Debt Securities of such series.
(c) The Trustee for the Debt Securities of any series may be
removed at any time with respect to the Debt Securities of such series by Act of
the Holders of a majority in principal amount of the Outstanding Debt Securities
of such series, delivered to such Trustee and to the Company.
(d) If at any time:
(1) the Trustee for the Debt Securities of any series shall
fail to comply with Section 310(b) of the Trust Indenture Act pursuant
to Section 6.8 after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Debt Security of such
series for at least six months unless the Trustee's duty to resign is
stayed in accordance with Section 310(b) of the Trust Indenture Act, or
(2) such Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
<PAGE> 47
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(3) such Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of such Trustee or of
its property shall be appointed or any public officer shall take charge
or control of such Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove such Trustee or (ii) any Holder who has been a bona fide Holder
of a Debt Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of such Trustee and the
appointment of a successor Trustee.
(e) If the Trustee for the Debt Securities of any series shall
resign, be removed or become incapable of acting, or if a vacancy shall occur in
the office of Trustee for the Debt Securities of any series for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee with
respect to the Debt Securities of such series and shall comply with the
applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Debt Securities of such series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of
Section 6.11, become the successor Trustee for the Debt Securities of such
series and supersede the successor Trustee appointed by the Company. If no
successor Trustee for the Debt Securities of such series shall have been so
appointed by the Company or the Holders and shall have accepted appointment in
the manner required by Section 6.11, and if such Trustee is still incapable of
acting, any Holder who has been a bona fide Holder of a Debt Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Debt Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Debt Securities of any series and
each appointment of a successor Trustee with respect to the Debt Securities of
any series in the manner and to the extent provided in Section 1.6. Each notice
shall include the name of the successor Trustee with respect to the Debt
Securities of that series and the address of its Corporate Trust Office.
SECTION 6.11 Acceptance of Appointment by Successor.
(a) Every such successor Trustee appointed hereunder with respect to
the Debt Securities of any series shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all
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the rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder, subject to the lien provided for in Section
6.7.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Debt Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Debt
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Debt Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debt Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and each Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Debt Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Debt Securities of that or those series to
which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in Subsections (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee for the Debt Securities of any
series shall be qualified and eligible under this Article.
(e) Notwithstanding replacement of the Trustee pursuant to Section
6.10, the Company's obligations under Section 6.7 shall continue for the benefit
of the retiring Trustee with respect to expenses, losses and liabilities
incurred by it prior to such replacement.
<PAGE> 49
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SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee or the Authenticating Agent, as
the case may be, for the Debt Securities of any series may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Trustee or such
Authenticating Agent, as the case may be, shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of such
Trustee, shall be the successor of such Trustee or such Authenticating Agent, as
the case may be, hereunder, provided such successor corporation shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties hereto
or the Trustee, the Authenticating Agent or their respective successor
corporations. In case any Debt Securities shall have been authenticated, but not
delivered, by the Trustee or the Authenticating Agent for such series then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee or Authenticating Agent, as the case may be, may adopt
such authentication and deliver the Debt Securities so authenticated with the
same effect as if such successor Trustee or successor Authenticating Agent had
itself authenticated such Debt Securities.
SECTION 6.13 Preferential Collection of Claims Against Company.
The Trustee for any particular series of Debt Securities shall comply
with Section 311(a) of the Trust Indenture Act for that particular series of
Debt Securities, excluding any creditor relationship listed in Section 311(b) of
that Act. If the Trustee for any particular series of Debt Securities shall
resign or be removed as Trustee for that particular series of Debt Securities,
it shall be subject to Section 311(a) of the Trust Indenture Act to the extent
provided therein.
SECTION 6.14 Authenticating Agents.
From time to time the Trustee for the Debt Securities of any series
may, subject to its sole discretion, appoint one or more Authenticating Agents
with respect to the Debt Securities of such series, which may include the
Company or any Affiliate of the Company, with power to act on the Trustee's
behalf and subject to its discretion in the authentication and delivery of Debt
Securities of such series in connection with transfers and exchanges hereunder,
including but not limited to those pursuant to Sections 3.4, 3.5, 3.6 and 11.7,
as fully to all intents and purposes as though such Authenticating Agent had
been expressly authorized by those Sections of this Indenture to authenticate
and deliver Debt Securities of such series. For all purposes of this Indenture,
the authentication and delivery of Debt Securities of such series by an
Authenticating Agent for such Debt Securities pursuant to this Section shall be
deemed to be authentication and delivery of such Debt Securities "by the
Trustee" for the Debt Securities of such series. Any such Authenticating Agent
shall at all times be a corporation organized and doing business under the laws
of the United States or of any State, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by Federal, State or
District of Columbia authority. If such Authenticating Agent publishes reports
of condition at least annually pursuant to law or the requirements of such
supervising or examining authority, then for the purposes of this Section the
combined capital and surplus of such corporation shall be
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deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time an Authenticating Agent for any
series of Debt Securities shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any Authenticating Agent for any series of Debt Securities may resign
at any time by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Debt Securities may at
any time terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Company in the
manner set forth in Section 1.5. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time any Authenticating Agent for any
series of Debt Securities shall cease to be eligible under this Section, the
Trustee for such series may appoint a successor Authenticating Agent, shall give
written notice of such appointment to the Company and shall give written notice
of such appointment to all Holders of Debt Securities of such series in the
manner set forth in Section 1.6. Any successor Authenticating Agent, upon
acceptance of its appointment hereunder, shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Trustee for the Debt Securities of each series agrees to pay to any
Authenticating Agent for such series from time to time reasonable compensation
for its services, and such Trustee shall be entitled to be reimbursed for such
payments, subject to Section 6.7.
If an appointment with respect to one or more series of Debt Securities
is made pursuant to this Section, the Debt Securities of such series may have
endorsed thereon, in addition to the Trustee's certification of authentication,
an alternate certificate of authentication in the following form:
"This is one of the Debt Securities, of the series designated herein, described
in the within-mentioned Indenture.
STAR BANK, N.A.
By:
---------------------------------------
As Authenticating Agent
By:
---------------------------------------
Authorized Signer
<PAGE> 51
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ARTICLE 7.
HOLDERS' REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Preservation of Information; Company to Furnish Trustee
Names and Addresses of Holders.
The Trustee for any particular series of Debt Securities shall preserve
in as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of Holders of the Debt Securities of that
series. Neither the Company nor such Trustee shall be under any responsibility
with regard to the accuracy of such list. With respect to each series of Debt
Securities, the Company, in furnishing information regarding such Holders to
such Trustee, and such Trustee, will satisfy the requirements imposed upon each
of them by Section 312(a) of the Trust Indenture Act.
SECTION 7.2 Communications to Holders.
Holders of any particular series of Debt Securities may communicate
with other Holders of Debt Securities of that series with respect to their
rights under this Indenture or under such series of Debt Securities pursuant to
Section 312(b) of the Trust Indenture Act. The Company and the Trustee for any
particular series of Debt Securities and any and all other Persons benefited by
this Indenture shall have the protection afforded by Section 312(c) of the Trust
Indenture Act.
SECTION 7.3 Reports by Trustee.
Within 60 days after November 15 of each year commencing with the year
following the first issuance of Debt Securities, the Trustee for the Debt
Securities of each series shall transmit by mail to all Holders of the Debt
Securities of such series a brief report dated as of such date that complies
with Section 313(a) of the Trust Indenture Act, but only if such report is
required in any year under such Section 313(a) of the Trust Indenture Act. With
respect to each series of Debt Securities, the Trustee shall also comply with
Sections 313(b) and 313(c) of the Trust Indenture Act. At any time a report is
mailed to the Holders of any particular series of Debt Securities, a copy of
such report shall be filed with the Commission and with each securities
exchange, if any, on which the Debt Securities of such series are listed. With
respect to each series of Debt Securities, the Company will notify the
applicable Trustee when such series of Debt Securities is listed on any
securities exchange.
SECTION 7.4 Reports by Company
The Company shall file such annual and/or periodic reports and
certificates with the Trustees for each series of Debt Securities and/or with
the Commission and/or with the Holders of each series of Debt Securities as are
required by the provisions of Section 314(a) of the Trust Indenture Act.
<PAGE> 52
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ARTICLE 8.
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or sell, convey, assign, transfer, lease or otherwise dispose of all
or substantially all of its properties and assets as an entirety to any Person
unless:
(1) either (i) the Company shall be the continuing corporation
or (ii) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person which
acquires by sale, assignment, conveyance, transfer, lease or
disposition all or substantially all of the properties and assets of
the Company as an entirety (x) shall be a corporation, partnership or
trust organized and validly existing under the laws of the United
States or any State thereof or the District of Columbia and (y) shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of (and premium, if any) and
interest, if any, on all the Debt Securities and the performance and
observance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction (and
treating any Indebtedness not previously an obligation of the Company
or a Subsidiary which becomes the obligation of the Company or any of
its Subsidiaries in connection with or as a result of such transaction
as having been incurred at the time of such transaction), no Event of
Default, and no event which, after notice or lapse of time, or both,
would become an Event of Default, shall have occurred and be
continuing;
(3) such other conditions, if any, as may be set forth in the
Board Resolution establishing the Debt Securities of that particular
series are met or complied with; and
(4) the Company has delivered to the Trustee for each series
of Debt Securities an Officers' Certificate and an Opinion of Counsel
each stating that such consolidation, merger, conveyance or transfer
and such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 8.2 Successor Corporation Substituted.
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety in accordance
with Section 8.1, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance or transfer is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
Person had been
<PAGE> 53
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named as the Company herein and thereafter the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and the Debt
Securities and, in the event of any such consolidation, merger, conveyance or
transfer, the Company as the predecessor corporation may thereupon or at any
time thereafter be dissolved, wound up, or liquidated.
ARTICLE 9.
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Debt Securities, the Company,
when authorized by a Board Resolution, and the Trustee for the Debt Securities
of any or all series, at any time and from time to time, may enter into one or
more indentures supplemental hereto, in form satisfactory to such Trustee, for
any of the following purposes:
(1) to evidence the succession of another corporation to the
Company pursuant to Article 8, and the assumption by any such successor
of the covenants of the Company herein and in the Debt Securities
contained; or
(2) to add to the covenants of the Company, for the benefit of
the Holders of all or any particular series of Debt Securities (and, if
such covenants are to be for the benefit of fewer than all series of
Debt Securities, stating that such covenants are being included solely
for the benefit of such series), or to surrender any right or power
herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to
any or all series of Debt Securities (and, if any such Event of Default
applies to fewer than all series of Debt Securities, stating each
series to which such Event of Default applies); or
(4) to add to, change or eliminate any of the provisions of
this Indenture, provided, however, that any such addition, change or
elimination shall become effective only when there is no Debt Security
Outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such
provision and as to which such supplemental indenture would apply; or
(5) to evidence and provide for the acceptance of appointment
hereunder of a Trustee other than Star Bank, N.A. as Trustee for a
series of Debt Securities and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.9; or
<PAGE> 54
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(6) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt Securities of
one or more series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11(b); or
(7) to establish the conditions, limitations and restrictions
on the authorized amount, form, terms or purposes of issue,
authentication and delivery of Debt Securities, as herein set forth,
and other conditions, limitations and restrictions thereafter to be
observed; or
(8) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
satisfaction and discharge of any series of Debt Securities pursuant to
Section 4.1; provided, however, that any such action shall not
adversely affect the interests of the Holders of Debt Securities of
such series or any other series of Debt Securities in any material
respect; or
(9) to add to or change or eliminate any provisions of this
Indenture as shall be necessary or desirable in accordance with any
amendments to the Trust Indenture Act; or
(10) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, to convey, transfer, assign, mortgage or pledge any property to
or with the Trustee for the Debt Securities of any series or to
surrender any right or power herein conferred upon the Company, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided such action shall not adversely affect
the rights of the Holders of Debt Securities of any particular series
in any material respect.
SECTION 9.2 Supplemental Indentures With Consent of Holders.
The Company, when authorized by a Board Resolution, and the Trustee for
the Debt Securities of any or all series may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of such Debt Securities
under this Indenture, but only with the consent of the Holders of more than 50%
in aggregate principal amount of the Outstanding Debt Securities of each series
of Debt Securities then Outstanding affected thereby, in each case by Act of
said Holders of Debt Securities of each such series delivered to the Company and
the Trustee for Debt Securities of each such series; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Debt Security affected thereby:
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Debt Security, or reduce the principal
amount thereof or the rate of interest thereon, if any, or any premium payable
upon the redemption thereof, or reduce the amount of the principal
<PAGE> 55
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of a Discounted Debt Security that would be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 5.2, or change the
Place of Payment, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date); or
(2) reduce the percentage in principal amount of the Outstanding Debt
Securities of any particular series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture; or
(3) modify any of the provisions of this Section or Section 5.13 or
10.7, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Debt Security affected thereby; provided, however, that this
clause shall not be deemed to require the consent of any Holder of a Debt
Security with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 10.7, or the deletion of this
proviso, in accordance with the requirements of Sections 6.9, 6.11(b), 9.1(6)
and 9.1(7).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Debt Securities, or which
modifies the rights of the Holders of Debt Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Debt Securities of any other
series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.3 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee for any series of Debt
Securities shall be entitled to receive, and (subject to Section 6.1) shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee for any series of Debt Securities may, but shall not be
obligated to, enter into any such supplemental indenture which affects such
Trustee's own rights, liabilities, duties or immunities under this Indenture or
otherwise.
SECTION 9.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith and such supplemental
indenture shall form a part of this
<PAGE> 56
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Indenture for all purposes; and every Holder of Debt Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.5 Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.6 Reference in Debt Securities to Supplemental Indentures.
Debt Securities of any particular series authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee for the Debt Securities of such series,
bear a notation in form approved by such Trustee as to any matter provided for
in such supplemental indenture. If the Company shall so determine, new Debt
Securities of any series so modified as to conform, in the opinion of the
Trustee for the Debt Securities of such series and the Board of Directors, to
any such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by such Trustee in exchange for Outstanding Debt
Securities of such series.
ARTICLE 10.
COVENANTS
SECTION 10.1 Payment of Principal (and Premium, if any) and Interest,
if any.
The Company agrees, for the benefit of each particular series of Debt
Securities, that it will duly and punctually pay (except as otherwise specified
pursuant to Section 3.1 for the Debt Securities of such series) the principal of
(and premium, if any) and interest, if any, on that series of Debt Securities in
accordance with the terms of the Debt Securities of such series and this
Indenture.
SECTION 10.2 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for a series of Debt
Securities an office or agency where Debt Securities of that series may be
presented or surrendered for payment, where Debt Securities of that series may
be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company with respect to the Debt Securities of that
series and this Indenture may be served. The Company will give prompt written
notice to the Trustee for the Debt Securities of that series of the location,
and any change in the location, of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency in respect of
any series of Debt Securities or shall fail to furnish the Trustee for the Debt
Securities of that series with the address thereof, such presentations (to the
extent permitted by law) and surrenders of Debt Securities of that series may be
made and notices and demands may be made or
<PAGE> 57
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served at the Corporate Trust Office of such Trustee, and the Company hereby
appoints the same as its agent to receive such respective presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside the Place of Payment) where the Debt
Securities of one or more series may be presented or surrendered for any or all
of the purposes specified above in this Section and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for such purpose. The Company will
give prompt written notice to the Trustee for the Debt Securities of each series
so affected of any such designation or rescission and of any change in the
location of any such office or agency.
SECTION 10.3 Money for Debt Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any particular series of Debt Securities, it will, on or not more
than one Business Day before each due date of the principal of (and premium, if
any) or interest, if any, on any of the Debt Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum (except as otherwise specified pursuant to Section 3.1 for the Debt
Securities of such series) sufficient to pay the principal (and premium, if any)
and interest, if any, so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and will promptly notify
the Trustee for the Debt Securities of such series of its action or failure so
to act.
Whenever the Company shall have one or more Paying Agents for any
particular series of Debt Securities, it will, prior to each due date of the
principal of (and premium, if any) or interest, if any, on any such Debt
Securities, deposit with a Paying Agent for the Debt Securities of such series a
sum sufficient to pay the principal (and premium, if any) and interest, if any,
so becoming due, such sum to be held in trust for the benefit of the Persons
entitled thereto, and (unless such Paying Agent is the Trustee for the Debt
Securities of such series) the Company will promptly notify such Trustee of its
action or failure so to act.
The Company will cause each Paying Agent for any particular series of
Debt Securities other than the Trustee for the Debt Securities of such series to
execute and deliver to such Trustee an instrument in which such Paying Agent
shall agree with such Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest, if any, on Debt Securities of that series in trust
for the benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give such Trustee notice of any default by the Company in the
making of any payment of principal (or premium, if any) and interest, if any, on
Debt Securities of that series;
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(3) at any time during the continuation of any such default, upon the
written request of such Trustee, forthwith pay to such Trustee all sums so held
in trust by such Paying Agent; and
(4) acknowledge, accept and agree to comply in all respects with the
provisions of this Indenture relating to the duties, rights and disabilities of
such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee for the Debt
Securities of any series all sums held in trust by the Company or such Paying
Agent, such sums to be held by such Trustee upon the same trusts as those upon
which such sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to such Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee for the Debt Securities of any
series or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of (and premium, if any) and interest, if any, on any
Debt Security of any particular series and remaining unclaimed for two years
after such principal (and premium, if any) and interest, if any, has become due
and payable shall, unless otherwise required by mandatory provisions of
applicable escheat, abandoned or unclaimed property law, be paid to the Company
on Company Request, or (if then held by the Company) shall be discharged from
such trusts; and the Holder of such Debt Security shall, thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of such Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that such Trustee or such Paying Agent, before being
required to make any such repayment may mail written notice to each such Holder
of such Debt Security in the manner set forth in Section 1.5, or may, in its
discretion, in the name and at the expense of the Company, cause to be published
at least once in a newspaper published in the English language customarily on
each Business Day and of general circulation in the Borough of Manhattan, the
City of New York, notice, that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such mailing or publication, any unclaimed balance of such money then remaining
will, unless otherwise required by mandatory provisions of applicable escheat,
abandoned or unclaimed property law, be repaid to the Company.
SECTION 10.4 Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon it or upon its income, profits or
property, and (2) all lawful claims for labor, materials and supplies which, if
unpaid, might by law become a lien upon its property; provided, however, that
the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
<PAGE> 59
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SECTION 10.5 Maintenance of Properties.
The Company shall cause all its properties used or useful in the
conduct of its business to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section shall
prevent the Company from discontinuing the operation and maintenance of any of
its properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business and not disadvantageous in any material
respect to the Holders.
SECTION 10.6 Corporate Existence.
Subject to Article 8, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders; and
provided, further, however, that the foregoing shall not prohibit a sale,
transfer or conveyance of a Subsidiary or any of its assets in compliance with
the terms of this Indenture.
SECTION 10.7 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 10.4 to 10.7, inclusive, or set
forth in any Board Resolution establishing the Debt Securities of a series, if
before or after the time for such compliance the Holders of more than 50% in
principal amount of the Outstanding Debt Securities of each series of Debt
Securities affected by the omission shall, in each case by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee for the Debt Securities of each series with respect to any such
covenant or condition shall remain in full force and effect.
ARTICLE 11.
REDEMPTION OF DEBT SECURITIES
SECTION 11.1 Applicability of this Article.
Redemption of Debt Securities of any series (whether by operation of a
sinking fund or otherwise) as permitted or required by any form of Debt Security
issued pursuant to this Indenture
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shall be made in accordance with such form of Debt Security and this Article;
provided, however, that if any provision of any such form of Debt Security shall
conflict with any provision of this Article, the provision of such form of Debt
Security shall govern.
SECTION 11.2 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Debt Securities of any series
shall be evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company of less than all of the Debt
Securities of any particular series, the Company shall, at least 30 days prior
to the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee for the Debt Securities of such series) notify such
Trustee by Company Request of such Redemption Date and of the principal amount
of Debt Securities of that series to be redeemed and shall deliver to such
Trustee such documentation and records as shall enable such Trustee to authorize
the Debt Security Registrar to select the Debt Securities to be redeemed
pursuant to Section 11.3. In the case of any redemption of Debt Securities of
any series prior to the expiration of any restriction on such redemption
provided in the terms of such Debt Securities or elsewhere in this Indenture,
the Company shall furnish the Trustee for Debt Securities of such series with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 11.3 Selection by Debt Security Registrar of Debt Securities
to Be Redeemed.
If less than all the Debt Securities are to be redeemed, the Company
may select the series to be redeemed, and if less than all the Debt Securities
of any series are to be redeemed, the particular Debt Securities of that series
to be redeemed shall be selected not more than 30 days prior to the Redemption
Date by the Debt Security Registrar for the Debt Securities of such series, from
the Outstanding Debt Securities of that series not previously called for
redemption, by such method as such Debt Security Registrar shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Debt Securities of that
series, or any integral multiple thereof) of the principal amount of Debt
Securities of that series of a denomination larger than the minimum authorized
denomination for Debt Securities of that series pursuant to Section 3.2.
The Debt Security Registrar for the Debt Securities of any series to be
redeemed shall promptly notify the Company in writing of the Debt Securities of
such series selected for redemption and, in the case of any Debt Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Debt Securities shall
relate, in the case of any Debt Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Debt Securities which has
been or is to be redeemed.
<PAGE> 61
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SECTION 11.4 Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
1.6 not later than the thirtieth day and not earlier than the sixtieth day prior
to the Redemption Date, to each Holder of Debt Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Debt Securities of a
particular series are to be redeemed, the identification (and, in the case of
partial redemption, the respective principal amounts) of the particular Debt
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debt Security or portion thereof, and that
interest thereon, if any, shall cease to accrue on and after said date,
(5) the place or places where such Debt Securities, are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Debt Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee for such Debt Securities in the name and at the expense of the
Company.
SECTION 11.5 Deposit of Redemption Price.
Prior to the opening of business on any Redemption Date, the Company
shall deposit with the Trustee for the Debt Securities to be redeemed or with a
Paying Agent for such Debt Securities (or, if the Company is acting as its own
Paying Agent for such Debt Securities, segregate and hold in trust as provided
in Section 10.3) an amount of money (except as otherwise specified pursuant to
Section 3.1 for the Debt Securities of such Series) sufficient to pay the
principal amount of (and premium, if any, thereon), and (except if the
Redemption Date shall be an Interest Payment Date) any accrued interest on, all
the Debt Securities which are to be redeemed on that date.
SECTION 11.6 Debt Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Debt
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified (except as otherwise provided
pursuant to Section 3.1 for the Debt Securities of such series) and
<PAGE> 62
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from and after such date (unless the Company shall default in the payment of the
Redemption Price) such Debt Securities shall cease to bear interest. Upon
surrender of such Debt Security for redemption in accordance with said notice,
such Debt Security or specified portions thereof shall be paid by the Company at
the Redemption Price; provided, however, that unless otherwise specified as
contemplated by Section 3.1, installments of interest on Debt Securities whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Debt Securities, or one or more Predecessor Debt Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 3.7.
If any Debt Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal thereof (and premium, if any,
thereon) shall, until paid, bear interest from the Redemption Date at a rate per
annum equal to the rate borne by the Debt Security (or, in the case of
Discounted Debt Securities, the Debt Security's Yield to Maturity).
SECTION 11.7 Debt Securities Redeemed in Part.
Any Debt Security which is to be redeemed only in part shall be
surrendered at the Place of Payment (with, if the Company or the Trustee for
such Debt Security so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Debt Security Registrar for
such Debt Security duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Company shall execute and such Trustee shall
authenticate and deliver to the Holder of such Debt Security without service
charge, a new Debt Security or Debt Securities, of any authorized denomination
as requested by such Holder, of the same series and having the same terms and
provisions and in an aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Debt Security so surrendered.
ARTICLE 12.
SINKING FUNDS
SECTION 12.1 Applicability of this Article.
Redemption of Debt Securities through operation of a sinking fund as
permitted or required by any form of Debt Security issued pursuant to this
Indenture shall be made in accordance with such form of Debt Security and this
Article; provided, however, that if any provision of any such form of Debt
Security shall conflict with any provision of this Article, the provision of
such form of Debt Security shall govern.
The minimum amount of any sinking fund payment provided for by the
terms of Debt Securities of any particular series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Debt Securities of any particular series is
herein referred to as an "optional sinking fund payment". If provided for by the
terms of Debt Securities of any particular series, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 12.2.
Each sinking fund payment shall be applied to
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the redemption of Debt Securities of any particular series as provided for by
the terms of Debt Securities of that series.
SECTION 12.2 Satisfaction of Sinking Fund Payments With Debt
Securities.
The Company (1) may deliver Outstanding Debt Securities of a series
(other than any previously called for redemption), and (2) may apply as a credit
Debt Securities of a series which have been redeemed either at the election of
the Company pursuant to the terms of such Debt Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Debt Securities, in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Debt Securities of such series required
to be made pursuant to the terms of such Debt Securities as provided for by the
terms of such series; provided, however, that such Debt Securities have not been
previously so credited. Such Debt Securities shall be received and credited for
such purpose by the Trustee for such Debt Securities at the principal amount
thereof and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 12.3 Redemption of Debt Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
particular series of Debt Securities, the Company will deliver to the Trustee
for the Debt Securities of such series an Officers' Certificate specifying the
amount of the next ensuing mandatory sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash (except as otherwise specified pursuant to
Section 3.1 for the Debt Securities of that series) and the portion thereof, if
any, which is to be satisfied by delivering and crediting Debt Securities of
that series pursuant to Section 12.2 and shall state the basis for such credit
and that such Debt Securities have not previously been so credited and will also
deliver to such Trustee any Debt Securities to be so delivered. Such Trustee
shall select the Debt Securities to be redeemed upon such sinking fund payment
date in the manner specified in Section 11.3 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 11.4. Such notice having been duly given, the
redemption of such Debt Securities shall be made upon the terms and in the
manner stated in Sections 11.5, 11.6 and 11.7.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
<PAGE> 64
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture dated
as of ___________, 1997 to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the ____ day of ________,
1997.
AAG HOLDING COMPANY, INC.
[SEAL]
By:
----------------------------------------
Title:
-------------------------------------
[SEAL] AMERICAN ANNUITY GROUP, INC.
By:
----------------------------------------
Title:
-------------------------------------
[SEAL] STAR BANK, N.A., Trustee
By:
----------------------------------------
Title
--------------------------------------
<PAGE> 1
EXHIBIT 4.4
AAG HOLDING COMPANY, INC.,
ISSUER
AMERICAN ANNUITY GROUP, INC.,
GUARANTOR
AND
STAR BANK, N.A.,
TRUSTEE
INDENTURE
DATED AS OF , 1997
SUBORDINATED DEBT SECURITIES
<PAGE> 2
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION.......................................1
SECTION 1.1 Definitions.........................................1
SECTION 1.2 Compliance Certificates and Opinions................8
SECTION 1.3 Form of Documents Delivered to Trustee..............8
SECTION 1.4 Acts of Holders.....................................9
SECTION 1.5 Notices, Etc., to Trustee and Company..............10
SECTION 1.6 Notice to Holders; Waiver..........................10
SECTION 1.7 Conflict with Trust Indenture Act..................11
SECTION 1.8 Effect of Headings and Table of Contents...........11
SECTION 1.9 Successors and Assigns.............................11
SECTION 1.10 Separability Clause................................11
SECTION 1.11 Benefits of Indenture..............................11
SECTION 1.12 Governing Law......................................11
SECTION 1.13 Non-Business Day...................................12
SECTION 1.14 Immunity of Incorporators, Shareholders,
Officers and Directors.............................12
ARTICLE 2. DEBT SECURITY FORM..........................................12
SECTION 2.1 Form of Debt Securities............................12
SECTION 2.2 Form of Trustee's Certificate of Authentication....13
SECTION 2.3 Unconditional Guarantee............................14
SECTION 2.4 Assumption by Guarantor............................15
SECTION 2.5 Debt Securities in Global Form.....................16
ARTICLE 3. THE DEBT SECURITIES.........................................16
SECTION 3.1 Title; Payment and Terms...........................16
SECTION 3.2 Denominations......................................18
SECTION 3.3 Execution, Authentication, Delivery and Dating.....18
SECTION 3.4 Temporary Debt Securities and Exchange of Debt
Securities.........................................20
SECTION 3.5 Registration, Registration of Transfer
and Exchange.......................................20
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen
Debt Securities....................................23
SECTION 3.7 Payment of Interest; Interest Rights Preserved.....24
SECTION 3.8 Persons Deemed Owners..............................25
SECTION 3.9 Cancellation.......................................25
SECTION 3.10 Computation of Interest............................26
<PAGE> 3
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ARTICLE 4. SATISFACTION AND DISCHARGE..................................26
SECTION 4.1 Satisfaction and Discharge of Debt Securities
of any Series......................................26
SECTION 4.2 Application of Trust Money.........................28
SECTION 4.3 Satisfaction and Discharge of Indenture............28
SECTION 4.4 Reinstatement......................................29
ARTICLE 5. REMEDIES....................................................29
SECTION 5.1 Events of Default..................................29
SECTION 5.2 Acceleration of Maturity; Rescission
and Annulment......................................31
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee.............................32
SECTION 5.4 Trustee May File Proofs of Claim...................33
SECTION 5.5 Trustee May Enforce Claims Without
Possession of Debt Securities......................34
SECTION 5.6 Application of Money Collected.....................34
SECTION 5.7 Limitation on Suits................................35
SECTION 5.8 Unconditional Right of Holders to Receive Principal
(and Premium, if any) and Interest, if any.........35
SECTION 5.9 Restoration of Rights and Remedies.................36
SECTION 5.10 Rights and Remedies Cumulative.....................36
SECTION 5.11 Delay or Omission Not Waiver.......................36
SECTION 5.12 Control by Holders.................................36
SECTION 5.13 Waiver of Past Defaults............................37
SECTION 5.14 Waiver of Stay or Extension Laws...................37
SECTION 5.15 Undertaking for Costs..............................37
ARTICLE 6. THE TRUSTEE.................................................38
SECTION 6.1 Certain Duties and Responsibilities................38
SECTION 6.2 Notice of Defaults.................................39
SECTION 6.3 Certain Rights of Trustee..........................39
SECTION 6.4 Not Responsible for Recitals or Issuance of
Debt Securities....................................40
SECTION 6.5 May Hold Debt Securities...........................40
SECTION 6.6 Money Held in Trust................................40
SECTION 6.7 Compensation and Reimbursement.....................41
SECTION 6.8 Disqualification; Conflicting Interests............41
SECTION 6.9 Corporate Trustee Required, Different Trustees
for Different Series; Eligibility..................41
SECTION 6.10 Resignation and Removal; Appointment of Successor..42
SECTION 6.11 Acceptance of Appointment by Successor.............43
SECTION 6.12 Merger, Conversion, Consolidation or
Succession to Business.............................45
SECTION 6.13 Preferential Collection of Claims Against Company..45
SECTION 6.14 Authenticating Agents..............................45
<PAGE> 4
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ARTICLE 7. HOLDERS' REPORTS BY TRUSTEE AND COMPANY.....................47
SECTION 7.1 Preservation of Information; Company to Furnish
Trustee Names and Addresses of Holders.............47
SECTION 7.2 Communications to Holders..........................47
SECTION 7.3 Reports by Trustee.................................47
SECTION 7.4 Reports by Company.................................47
ARTICLE 8. CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER...............48
SECTION 8.1 Company May Consolidate, Etc., Only on
Certain Terms......................................48
SECTION 8.2 Successor Corporation Substituted..................48
ARTICLE 9. SUPPLEMENTAL INDENTURES.....................................49
SECTION 9.1 Supplemental Indentures Without Consent of Holders.49
SECTION 9.2 Supplemental Indentures With Consent of Holders....50
SECTION 9.3 Execution of Supplemental Indentures...............51
SECTION 9.4 Effect of Supplemental Indentures..................51
SECTION 9.5 Conformity With Trust Indenture Act................52
SECTION 9.6 Reference in Debt Securities to
Supplemental Indentures............................52
ARTICLE 10. COVENANTS...................................................52
SECTION 10.1 Payment of Principal (and Premium, if any)
and Interest, if any...............................52
SECTION 10.2 Maintenance of Office or Agency....................52
SECTION 10.3 Money for Debt Securities Payments to Be
Held in Trust......................................53
SECTION 10.4 Payment of Taxes and Other Claims..................54
SECTION 10.5 Maintenance of Properties..........................55
SECTION 10.6 Corporate Existence................................55
SECTION 10.7 Waiver of Certain Covenants........................55
ARTICLE 11. REDEMPTION OF DEBT SECURITIES...............................55
SECTION 11.1 Applicability of this Article......................55
SECTION 11.2 Election to Redeem; Notice to Trustee..............56
SECTION 11.3 Selection by Debt Security Registrar of
Debt Securities to Be Redeemed.....................56
SECTION 11.4 Notice of Redemption...............................57
SECTION 11.5 Deposit of Redemption Price........................57
SECTION 11.6 Debt Securities Payable on Redemption Date. ......57
SECTION 11.7 Debt Securities Redeemed in Part...................58
<PAGE> 5
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ARTICLE 12. SINKING FUNDS...............................................58
SECTION 12.1 Applicability of this Article......................58
SECTION 12.2 Satisfaction of Sinking Fund Payments With
Debt Securities....................................59
SECTION 12.3 Redemption of Debt Securities for Sinking Fund.....59
ARTICLE 13. SUBORDINATION OF SECURITIES.................................59
SECTION 13.1 Debt Securities to Senior Indebtedness.............59
SECTION 13.2 Default on Senior Indebtedness.....................60
SECTION 13.3 Liquidation; Dissolution; Bankruptcy...............60
SECTION 13.4 Subrogation........................................62
SECTION 13.5 Trustee to Effectuate Subordination................63
SECTION 13.6 Notice by the Company..............................63
SECTION 13.7 Rights of the Trustee; Holders of
Senior Indebtedness................................63
SECTION 13.8 Subordination May Not be Impaired..................64
<PAGE> 6
INDENTURE, dated as of ______________, 1997, among AAG HOLDING COMPANY,
INC., an Ohio corporation, 250 East Fifth Street, Cincinnati, Ohio 45202 (the
"Company"), AMERICAN ANNUITY GROUP, INC., a Delaware corporation, 250 East Fifth
Street, Cincinnati, Ohio 45202 (the "Guarantor") and STAR BANK, N.A., a national
banking association, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its
lawful purposes securities (hereinafter called the "Debt Securities") evidencing
its unsecured indebtedness and has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of the Debt
Securities, unlimited as to principal amount, to have such titles, to bear such
rates of interest, to mature at such time or times and to have such other
provisions as shall be fixed as hereinafter provided.
All things necessary to make this Indenture a valid agreement of the
Company and Guarantor, in accordance with its terms, have been done, and the
Company proposes to do all things necessary to make the Debt Securities, when
executed by the Company and Guarantor and authenticated and delivered hereunder
and duly issued by the Company and Guarantor, the valid obligations of the
Company and Guarantor as hereinafter provided.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Debt
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Debt Securities or any
series thereof, as follows:
ARTICLE 1.
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions.
For all purposes of this Indenture and all Debt Securities issued
hereunder, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles in
the United States, and the term "generally accepted accounting principles" with
respect to any computation required or permitted
<PAGE> 7
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hereunder shall mean such generally accepted accounting principles as in effect
and as implemented by the Company at the time of their application; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article 3 and Article 6, are defined
in those Articles.
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.4.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized to authenticate and
deliver Debt Securities on behalf of the Trustee for the Debt Securities of any
series pursuant to Section 6.14.
"Board of Directors" means the board of directors of the Company or the
Guarantor or any duly authorized committee of either of such boards or any
director or directors and/or officer or officers of the Company or Guarantor to
whom that either of such boards or committees shall have duly delegated its
authority.
"Board Resolution" means (1) a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company or the Guarantor to have been
duly adopted by the Board of Directors or the Executive Committee of the Board
of Directors and to be in full force and effect on the date of such
certification, or (2) a certificate signed by the director or directors or
officer or officers to whom the Board of Directors shall have duly delegated its
authority, and delivered to the Trustee.
"Business Day", when used with respect to any particular Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking institutions in that Place of Payment are authorized or
obligated by law to close.
"Capitalized Lease Obligation" means any obligation to pay rent or
other amounts under a lease of (or other agreement conveying the right to use)
real or personal property that is required to be classified and accounted for as
a capital lease obligation under generally accepted accounting principles
consistently applied, and, for the purposes of this Indenture, the amount of
such obligation at any date shall be the capitalized amount thereof at such
date, determined in accordance with such principles.
<PAGE> 8
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"Certificate of a Firm of Independent Public Accountants" means a
certificate signed by any firm of independent public accountants of recognized
standing selected by the Company. The term "independent" when used with respect
to any specified firm of public accountants means such a firm which (1) is in
fact independent, (2) does not have any direct financial interest or any
material indirect financial interest in the Company or in any Affiliate of the
Company, and (3) is not connected with the Company or any Affiliate of the
Company as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions, but such firm may be the
regular auditors employed by the Company.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by (1) the Chairman of the
Board, a Vice Chairman of the Board, Chief Executive Officer, the President, a
Co-President or a Vice President and by the Treasurer, an Assistant Treasurer,
an Assistant Controller, the Secretary or an Assistant Secretary of the Company,
or (2) by any two Persons designated in a Company Order previously delivered to
the Trustee for the Debt Securities of any series by any two of the foregoing
officers and delivered to the Trustee for the Debt Securities of such series.
"Corporate Trust Office" means the office of the Trustee for Debt
Securities of any series at which at any particular time its corporate trust
business shall be principally administered, which as of the date of this
Indenture is located at 425 Walnut Street, Cincinnati, Ohio 45202.
"Debt Securities" means securities evidencing unsecured indebtedness of
the Company authenticated and delivered under this Indenture.
"Debt Security Register" and "Debt Security Registrar" have the
respective meanings specified in Section 3.5.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Discounted Debt Security" means any Debt Security which provides for
an amount (excluding any amounts attributable to accrued but unpaid interest
thereon) less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.2.
"Dollars" and the sign "$" mean the currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"Event of Default" has the meaning specified in Section 5.1.
<PAGE> 9
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"Exchange Act" means the Securities Exchange Act of 1934.
"Global Security" means a Debt Security in global form established
pursuant to Section 2.5.
"Holder", when used with respect to any Debt Security, means the Person
in whose name a Debt Security is registered in the Debt Security Register.
"Indebtedness" means (a) any liability of any Person (1) for borrowed
money, or under any reimbursement obligation relating to a letter of credit
(other than letters of credit obtained in the ordinary course of business), or
(2) evidenced by a bond, note, debenture or similar instrument (including a
purchase money obligation) given in connection with the acquisition of any
businesses, properties or assets of any kind or with services incurred in
connection with capital expenditures (other than accounts payable or other
indebtedness to trade creditors arising in the ordinary course of business), or
(3) for the payment of money relating to a Capitalized Lease Obligation; (b) any
liability of others described in the preceding clause (a) that the Person has
guaranteed or that is otherwise its legal liability; and (c) any amendment,
supplement, modification, deferral, renewal, extension or refunding of any
liability of the types referred to in clauses (a) and (b) above.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of a particular series of Debt Securities
established as contemplated by Section 3.1.
"Interest", when used with respect to a Discounted Debt Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity.
"Interest Payment Date", when used with respect to any Debt Security,
means the Stated Maturity of an installment of interest on such Debt Security.
"Maturity", when used with respect to any Debt Security, means the date
on which the principal of that Debt Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, request for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, a Co-President or a Vice President (any
reference to a Vice President of the Company herein shall be deemed to include
any Vice President of the Company whether or not designated by a number or a
word or words added before or after the title "Vice President"), and by the
Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary of the Company, and delivered to the Trustee
for the Debt Securities of any series.
<PAGE> 10
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"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel to the Company, or other counsel satisfactory to the
Trustee for the Debt Securities of any series. An Opinion of Counsel may rely on
certificates as to matters of fact.
"Outstanding", when used with respect to Debt Securities, means, as of
the date of determination, all Debt Securities theretofore authenticated and
delivered under this Indenture, except:
(1) Debt Securities theretofore canceled by the Trustee for such Debt
Securities or delivered to such Trustee for cancellation;
(2) Debt Securities or portions thereof for whose payment or redemption
money in the necessary amount has been theretofore deposited with the Trustee
for such Debt Securities or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Debt Securities (including Debt
Securities with respect to which the Company has effected satisfaction and
discharged as provided in Article Four, except to the extent provided in such
Article); provided, however, that, if such Debt Securities or portions thereof
are to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture, or provision therefor satisfactory to such Trustee has been
made; and
(3) Debt Securities which have been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Debt Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Debt Securities in
respect of which there shall have been presented proof satisfactory to the
Trustee for such Debt Securities that any such Debt Securities are held by bona
fide purchasers in whose hands the Debt Securities are valid obligations of the
Company; provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
(a) Debt Securities owned by the Company or any Affiliate of the Company shall
be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee for such Debt Securities shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or waiver,
only Debt Securities which such Trustee knows to be so owned shall be so
disregarded, provided, that Debt Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of such Trustee the pledgee's right so to act with respect to such
Debt Securities and that the pledgee is not the Company or any Affiliate of the
Company and (b) the principal amount of a Discounted Debt Security that shall be
deemed to be Outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon
a declaration of acceleration pursuant to Section 5.2.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest, if any, on any Debt Securities
on behalf of the Company.
<PAGE> 11
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"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock or limited liability company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Debt Securities of
any particular series, means the place or places where the principal of (and
premium, if any) and interest, if any, on the Debt Securities of that series are
payable, as contemplated by Section 3.1.
"Redemption Date", when used with respect to any Debt Security to be
redeemed in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Debt Security to be
redeemed, means an amount equal to the principal amount thereof (and premium, if
any, thereon) together with accrued interest, if any, to the Redemption Date.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Debt Securities of any series, means the date, if any, specified for
that purpose as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee for any
series of Debt Securities, means the chairman or vice chairman of the board of
directors, the chairman or vice chairman of the executive committee of the board
of directors, the chief executive officer, the president, any vice president
(whether or not designated by a number or a word or words added before or after
the title "vice president"), the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, the controller or any assistant
controller or any other officer of such Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Senior Indebtedness" means, with respect to the Company or Guarantor,
(i) the principal, premium, if any, and interest in respect of (A) Indebtedness
of such obligor for money borrowed, and (B) Indebtedness evidenced by
securities, debentures, bonds or other similar instruments issued by such
obligor, (ii) all capital lease obligations of such obligor, (iii) all
obligations of such obligor issued or assumed as the deferred purchase price of
property, all conditional sale obligations of such obligor and all obligations
of such obligor under any title retention agreement (but excluding trade
accounts payable arising in the ordinary course of business), (iv) all
obligations of such obligor for the reimbursement on any letter of credit,
banker's acceptance, security purchase facility or similar credit transaction,
(v) all obligations of the type referred to in clauses (i) through (iv) above of
other persons for the payment of which such obligor is responsible or liable as
obligor, guarantor or otherwise; and (vi) all obligations of the type referred
to in clauses (i) through (v) above of other persons secured by any lien on any
property or asset of such obligor (whether or not such obligation is assumed by
such obligor), except in each case for (1) any such Indebtedness that is by its
terms subordinated to or pari passu with the Debt Securities, and (2) any
Indebtedness in respect of debt
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securities, issued to any trust or a trustee of such trust, partnership or other
entity affiliated with the Company or the Guarantor that is a financing entity
for such obligor (a "financing entity") in connection with the issuance by such
financing entity of securities. Such Senior Indebtedness shall continue to be
Senior Indebtedness and be entitled to the benefits of the subordination
provisions irrespective of any amendment, modification or waiver of any term of
such Senior Indebtedness.
A "series" of Debt Securities means all Debt Securities denoted as part
of the same series authorized by or pursuant to a particular Board Resolution.
"Special Record Date" for the payment of any Defaulted Interest on the
Debt Securities of any series means a date fixed by the Trustee for such series
pursuant to Section 3.7.
"Stated Maturity", when used with respect to any security or any
installment of principal thereof or interest thereon, means the date specified
in such security representing such installment of interest as the fixed date on
which the principal of such security or such installment of principal or
interest is due and payable.
"Subsidiary" means any corporation of which at least a majority of all
outstanding stock having ordinary voting power in the election of directors of
such corporation is at the time, directly or indirectly, owned by the Company or
by one or more Subsidiaries or by the Company and one or more Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument and, subject to the provisions of Article 6 hereof,
shall also include its successors and assigns as Trustee hereunder. If there
shall be at one time more than one Trustee hereunder, "Trustee" shall mean each
such Trustee and shall apply to each such Trustee only with respect to those
series of Debt Securities with respect to which it is serving as Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this Indenture was executed, except as provided in
Section 9.5 hereof and except that any rules and regulations subsequently
prescribed by the Commission pursuant to Section 314(a) of that Act shall apply.
"U.S. Depositary" means a clearing agency registered under the Exchange
Act, or any successor thereto, which shall in either case be designated by the
Company pursuant to Section 3.1, until a successor U.S. Depositary shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "U.S. Depositary" shall mean or include each Person who is then a
U.S. Depositary hereunder, and if at any time there is more than one such
Person, "U.S. Depositary" as used with respect to the Debt Securities of any
series shall mean the U.S. Depositary with respect to the Debt Securities of
that series.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the government of the United States or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the government of the United States, the payment of which
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is unconditionally guaranteed by such government, which, in either case, are
full faith and credit obligations of such government and are not callable or
redeemable at the option of the issuer thereof.
"United States" means the United States of America (including the
States and the District of Columbia), its territories, possessions and other
areas subject to its jurisdiction (including the Commonwealth of Puerto Rico).
"Yield to Maturity", when used with respect to any Discounted Debt
Security, means the yield to maturity, if any, set forth on the face thereof.
SECTION 1.2 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee for any
series of Debt Securities to take any action under any provision of this
Indenture, the Company shall furnish to such Trustee (i) an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with, (ii) an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, and (iii) if appropriate,
a Certificate of a Firm of Independent Public Accountants; provided, that in the
case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or request, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such condition
or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but
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one such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows that the certificate or
opinion or representations with respect to matters upon which his certificate or
opinion is based are erroneous.
Any such certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company, unless such
counsel knows that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4 Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the
Trustee for the appropriate series of Debt Securities and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Debt Security, shall be sufficient for any
purpose of this Indenture and (subject to Section 6.1) conclusive in favor of
the Trustee for the appropriate series of Debt Securities and the Company and
any agent of such Trustee or the Company, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by an officer of a corporation or association or a member of a
partnership, or an official of a public or governmental body, on behalf of such
corporation, association, partnership or public or governmental body or by a
fiduciary, such certificate or affidavit shall also constitute sufficient proof
of his authority.
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(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee for the appropriate series
of Debt Securities deems sufficient.
(d) The principal amount and serial numbers of Debt Securities held by
any Person, and the date of holding the same, shall be proved by the Debt
Security Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Debt Security shall bind every
future Holder of the same Debt Security and the Holder of every Debt Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustee for such Debt Securities, the Debt Security Registrar, any Paying Agent
or the Company in reliance thereon, whether or not notation of such action is
made upon such Debt Security.
SECTION 1.5 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other documents provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee for a series of Debt Securities by any Holder or by the
Company shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with such Trustee at its Corporate Trust
Office, Attention: Corporate Trustee Administration Department, or
(2) the Company by such Trustee or by any Holder shall be sufficient
for every purpose hereunder if in writing and mailed, first class postage
prepaid, to the Company addressed to it at the address of its principal office
specified in the first paragraph of this instrument or at any other address
previously furnished in writing to such Trustee by the Company (except as
provided in paragraphs (3), (4) and (5) of Section 5.1.
SECTION 1.6 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
to Holders if in writing and mailed, first class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Debt Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice.
In any case where notice to Holders of Debt Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Any notice mailed in the manner prescribed by
this Indenture shall be deemed to have been given whether or not received by any
particular Holder. In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give such notice to
Holders by mail, then such notification as shall be
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made with the approval of the Trustee for such Debt Securities shall constitute
a sufficient notification for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee for such
Debt Securities, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
SECTION 1.7 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 310 through 317, inclusive, of the Trust Indenture
Act through the operation of Section 318(c) thereof, such imposed duties shall
control.
SECTION 1.8 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.9 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.10 Separability Clause.
In any case any provision in this Indenture or in the Debt Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Debt Securities, expressed or
implied, shall give to any Person, other than the parties hereto, any Paying
Agent, any Debt Security Registrar and their successors hereunder and the
Holders of Debt Securities, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 1.12 Governing Law.
THIS INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF OHIO WITHOUT REGARD TO THE CONFLICTS OF LAW RULES OF
SUCH STATE. THIS INDENTURE IS SUBJECT TO THE PROVISIONS OF THE TRUST INDENTURE
ACT OF 1939, AS AMENDED, THAT ARE
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REQUIRED TO BE PART OF THIS INDENTURE AND SHALL, TO THE EXTENT APPLICABLE, BE
GOVERNED BY SUCH PROVISIONS.
SECTION 1.13 Non-Business Day.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of a Debt Security of any particular series shall not be a Business Day
at any Place of Payment with respect to Debt Securities of that series, then
(notwithstanding any other provision of this Indenture or of the Debt
Securities) payment of principal of (and premium, if any) and interest, if any,
with respect to such Debt Security need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption Date
or Stated Maturity, as the case may be.
SECTION 1.14 Immunity of Incorporators, Shareholders, Officers and
Directors.
No recourse shall be had for the payment of the principal of (and
premium, if any), or the interest, if any, on any Debt Security of any series,
or for any claim based thereon, or upon any obligation, covenant or agreement of
this Indenture, against any incorporator, shareholder, officer or director, as
such, past, present or future, of the Company or the Guarantor or of any
successor corporation, either directly or indirectly through the Company or the
Guarantor or any successor corporation, whether by virtue of any constitution,
statute or rule of law or by the enforcement of any assessment of penalty or
otherwise; it being expressly agreed and understood that this Indenture and all
the Debt Securities of each series are solely corporate obligations, and that no
personal liability whatever shall attach to, or is incurred by, any
incorporator, shareholder, officer or director, past, present or future, of the
Company or the Guarantor or of any successor corporation, either directly or
indirectly through the Company or the Guarantor or any successor corporation,
because of the incurring of the indebtedness hereby authorized or under or by
reason of any of the obligations, covenants or agreements contained in this
Indenture or in any of the Debt Securities of any series, or to be implied
herefrom or therefrom; and that all such personal liability is hereby expressly
released and waived as a condition of, and as part of the consideration for, the
execution of this Indenture and the issuance of the Debt Securities of each
series.
ARTICLE 2.
DEBT SECURITY FORM
SECTION 2.1 Form of Debt Securities.
The Debt Securities of each series shall be in substantially the forms
set forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such
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letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Debt Securities, as evidenced by their execution of the
Debt Securities. If the form of Debt Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 3.3 for the authentication and delivery of such
Securities.
Prior to the delivery of a Debt Security of any series in any such form
to the Trustee for the Debt Securities of such series for authentication, the
Company shall deliver to such Trustee the following:
(1) The Board Resolution by or pursuant to which such form of Debt
Security has been approved;
(2) An Officers' Certificate dated the date such Certificate is
delivered to such Trustee stating that all conditions precedent provided for in
this Indenture relating to the authentication and delivery of Debt Securities in
such form have been complied with; and
(3) An Opinion of Counsel stating that Debt Securities in such form,
when (a) completed by appropriate insertions and executed and delivered by the
Company and Guarantor to such Trustee in accordance with this Indenture, (b)
authenticated and delivered by such Trustee in accordance with this Indenture
within the authorization as to aggregate principal amount established from time
to time by the Board of Directors and (c) issued in the manner specified in such
Opinion of Counsel, will be the legal, valid and binding obligations of the
Company and Guarantor, subject to applicable bankruptcy, reorganization,
insolvency and other similar laws generally affecting creditors' rights, to
general equitable principles and to such other qualifications as such counsel
shall conclude do not materially affect the rights of Holders of such Debt
Securities.
The definitive Debt Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Debt Securities, as evidenced by their
execution thereof.
SECTION 2.2 Form of Trustee's Certificate of Authentication.
The Certificate of Authentication on all Debt Securities shall be in
substantially the following form:
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"This is one of the Debt Securities, of the series designated herein,
described in the within-mentioned Indenture.
STAR BANK, N.A., as Trustee
By ________________________________
Authorized Officer"
SECTION 2.3 Unconditional Guarantee.
Each Debt Security shall contain the following form of unconditional
guarantee:
FOR VALUE RECEIVED, the Guarantor hereby unconditionally guarantees to
the holder of the Debt Security upon which this Guarantee is endorsed the due
and punctual payment of the principal or interest on said Debt Security, when
and as the same shall become due and payable, whether at maturity, upon
redemption or otherwise, according to the terms thereof and of the Indenture
referred to therein.
The Guarantor agrees to determine, at least one Business Day prior to
the date upon which a payment of principal of or interest on said Debt Security
is due and payable, whether the Company has available the funds to make such
payment as the same shall become due and payable. In case of the failure of the
Company punctually to pay any such principal, premium, if any, or interest, the
Guarantor hereby agrees to cause any such payment to be made punctually when and
as the same shall become due and payable, whether at maturity, upon redemption,
or otherwise, and as if such payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrevocable, and absolute, irrespective of the validity,
regularity, or enforceability of said Debt Security or said Indenture, the
absence of any action to enforce the same, any waiver or consent by the Holder
of said Debt Security with respect to any provisions thereof, the recovery of
any judgment against the Company or any action to enforce the same, or any other
circumstance which might otherwise constitute a legal or equitable discharge or
equitable discharge or defense of a guarantor. The Guarantor hereby waives
diligence, presentment, bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect to said
Debt Security or indebtedness evidenced thereby, and all demands whatsoever and
covenants that this Guarantee will not be discharged except by complete
performance of the obligations contained in said Security and in this Guarantee.
The Guarantor shall be subrogated to all rights of the holder of said
Debt Security against the Company in respect of any amounts paid by the
Guarantor pursuant to the provisions of this Guarantee; provided, however, that
the Guarantor shall not, without the consent of the holders of all of the Debt
Securities then outstanding, be entitled to enforce or to receive any payments
arising out of or based upon such right of subrogation until the principal of
and premium, if any, and interest
<PAGE> 20
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on all Debt Securities shall have been paid in full or payment thereof shall
have been provided for in accordance with said Indenture.
Notwithstanding anything to the contrary contained herein, if following
any payment of principal or interest by the Company on the Debt Securities to
the holders of the Debt Securities it is determined by a final decision of a
court of competent jurisdiction that such payment shall be avoided by a trustee
in bankruptcy (including any debtor-in-possession) as a preference under 11
U.S.C. Section 547 and such payment is paid by such holder to such trustee in
bankruptcy, then and to the extent of such repayment, the obligations of the
Guarantor hereunder shall remain in full force and effect.
This Guarantee shall not be valid or become obligatory for any purpose
with respect to a Debt Security until the certificate of authentication on such
Security shall have been signed by the Trustee (or the Authentication Agent).
This Guarantee shall be governed by the laws of the State of Ohio
without regard to conflicts of laws principles thereof.
IN WITNESS WHEREOF, American Annuity Group, Inc. has caused this
Guarantee to be signed in its corporate name by the facsimile signature of two
of its officers thereunto duly authorized and has caused a facsimile of its
corporate seal to be affixed hereunto or imprinted or otherwise reproduced
hereon.
[SEAL] AMERICAN ANNUITY GROUP, INC.
By:____________________________
Name:__________________________
Title:________________________
Attest:______________________
SECTION 2.4 Assumption by Guarantor.
The Guarantor may, without the consent of the Holders, assume all of
the rights and obligations of the Company hereunder with respect to the Debt
Securities if, after giving effect to such assumption, no Event of Default shall
have occurred and be continuing. Upon such an assumption, the Guarantor shall
execute a supplemental indenture evidencing its assumption of all such rights
and obligations of the Company and the Company shall be released from its
liabilities hereunder and under such Debt Securities as obligor.
<PAGE> 21
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SECTION 2.5 Debt Securities in Global Form.
If any Debt Security of a series is issuable in global form, such Debt
Security may provide that it shall represent the aggregate amount of Outstanding
Debt Securities from time to time endorsed thereon and may also provide that the
aggregate amount of Outstanding Debt Securities represented thereby may from
time to time be reduced to reflect exchanges. Any endorsement of a Global
Security to reflect the amount, or any increase or decrease in the amount, of
Outstanding Debt Securities represented thereby shall be made by the Trustee and
in such manner as shall be specified in such Global Security. Any instructions
by the Company with respect to a Global Security, after its initial issuance,
shall be in writing but need not comply with Section 1.2. Global Securities may
be issued in either temporary or permanent form.
None of the Company, the Guarantor, the Trustee, any Paying Agent or
the Debt Security Registrar will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
ARTICLE 3.
THE DEBT SECURITIES
SECTION 3.1 Title; Payment and Terms.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered and Outstanding under this Indenture is unlimited.
The Debt Securities may be issued up to the aggregate principal amount of Debt
Securities from time to time authorized by or pursuant to a Board Resolution.
The Debt Securities may be issued in one or more series, each of which
shall be issued pursuant to a Board Resolution. With respect to any particular
series of Debt Securities, the Board Resolution relating thereto shall specify:
(1) the title of the Debt Securities of that series (which shall
distinguish the Debt Securities of that series from all other series of Debt
Securities);
(2) any limit upon the aggregate principal amount of the Debt
Securities of that series which may be authenticated and delivered under this
Indenture (except for Debt Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Debt
Securities of that series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.7 or
otherwise pursuant to any covenant permitting the purchase of a portion of the
Debt Securities of that series);
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(3) the date or dates (or manner of determining the same) on which the
principal of the Debt Securities of that series is payable (which, if so
provided in such Board Resolution, may be determined by the Company from time to
time and set forth in the Debt Securities of the series issued from time to
time);
(4) the rate or rates (or the manner of calculation thereof) at which
the Debt Securities of that series shall bear interest (if any), the date or
dates from which such interest shall accrue (which, in either case or both, if
so provided in such Board Resolution, may be determined by the Company from time
to time and set forth in the Debt Securities of the series issued from time to
time), the Interest Payment Dates on which such interest shall be payable (or
manner of determining the same) and the Regular Record Date for the interest
payable on any Debt Securities on any Interest Payment Date;
(5) the place or places where, subject to the provisions of Section
10.2, the principal of (and premium, if any) and interest, if any, on Debt
Securities of that series shall be payable, any Debt Securities of that series
may be surrendered for registration of transfer, any Debt Securities of that
series may be surrendered for exchange, and notices and demands to or upon the
Company in respect of the Debt Securities of that series and this Indenture may
be served;
(6) the period or periods within which, the price or prices at which
and the terms and conditions upon which Debt Securities of that series may be
redeemed, in whole or in part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem or purchase Debt
Securities of that series pursuant to any sinking fund or analogous provisions
or at the option of a Holder thereof, and the period or periods within which,
the price or prices at which and the terms and conditions upon which, Debt
Securities of that series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(8) the denominations in which any Debt Securities of that series shall
be issuable, if other than denominations of $1,000 and any integral multiple
thereof;
(9) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of that series which shall be payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.2;
(10) any addition to, or modification or deletion of, any Events of
Default or covenants of the Company with respect to the Debt Securities of that
series, whether or not such Events of Default or covenants are consistent with
the Events of Default or covenants set forth herein;
(11) if a Person other than Star Bank, N.A. is to act as Trustee for
the Debt Securities of that series, the name and location of the Corporate Trust
Office of such Trustee;
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(12) if other than as set forth in Section 4.1, provisions for the
satisfaction and discharge of this Indenture with respect to the Debt Securities
of that series;
(13) any provision relating to the defeasance of the obligations of the
Company in connection with the Debt Securities of that series;
(14) any provisions regarding exchangeability or conversion of the Debt
Securities of that series;
(15) whether the Debt Securities of the series shall be issued in whole
or in part in the form of one or more Global Securities and, in such case, the
U.S. Depositary for such Global Security or Securities; whether such global form
shall be permanent or temporary; the manner in which and the circumstances under
which Global Securities representing Debt Securities of the series may be
exchanged for Debt Securities in definitive form, if other than, or in addition
to, the manner and circumstances specified in Section 3.5 hereof; the extent to
which, or the manner in which, any interest payable on any Global Security on
any Interest Payment Date will be paid, if other than in the manner provided in
Section 3.7; the manner in which the principal of, or premium, if any, on, any
Global Security will be paid, if other than as set forth elsewhere herein; and
(16) any other terms of that series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any particular series shall be substantially
identical except as to denomination, rate of interest, Stated Maturity and the
date from which interest, if any, shall accrue, and except as may otherwise be
provided in or pursuant to such Board Resolution relating thereto. The terms of
such Debt Securities, as set forth above, may be determined by the Company from
time to time if so provided in or established pursuant to the authority granted
in a Board Resolution. Any of the terms of the Debt Securities, as set forth
above, may be made dependent upon facts ascertainable outside the Board
Resolution provided that the manner in which said facts shall operate upon the
terms is set forth in the Board Resolution. All Debt Securities of any one
series need not be issued at the same time, and unless otherwise provided, a
series may be reopened for issuance of additional Debt Securities of such
series.
SECTION 3.2 Denominations.
Unless otherwise provided with respect to any series of Debt Securities
as contemplated by Section 3.1, all Debt Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 3.3 Execution, Authentication, Delivery and Dating.
The Debt Securities shall be executed on behalf of the Company and the
Guarantor by their respective Chairman of the Board, a Vice Chairman of the
Board, or its President, a Co-President or one of its Vice Presidents. The Debt
Securities shall be so executed under their corporate seal
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reproduced thereon and attested to by its Secretary or any one of its Assistant
Secretaries. The signature of any of these officers on the Debt Securities may
be manual or facsimile.
Debt Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company or the
Guarantor shall bind the Company or the Guarantor, as the case may be,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Debt Securities or did
not hold such offices at the date of such Debt Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debt Securities of any series executed
by the Company to the Trustee for the Debt Securities of such series for
authentication, together with a Company Order for the authentication and
delivery of such Debt Securities, and such Trustee, in accordance with the
Company Order, shall authenticate and deliver such Debt Securities. If all the
Debt Securities of any one series are not to be issued at one time and if a
Board Resolution relating to such Debt Securities shall so permit, such Company
Order may set forth procedures acceptable to the Trustee for the issuance of
such Debt Securities, including, without limitation, procedures with respect to
interest rate, Stated Maturity, date of issuance and date from which interest,
if any, shall accrue.
Notwithstanding any contrary provision herein, if all Debt Securities
of a series are not to be originally issued at one time, it shall not be
necessary to deliver the Board Resolution, Officers' Certificate and Opinion of
Counsel otherwise required pursuant to Sections 1.2 and 2.1 at or prior to the
time of authentication of each Debt Security of such series if such documents
are delivered at or prior to the authentication upon original issuance of the
first Debt Security of such series to be issued.
Each Debt Security shall be dated the date of its authentication.
No Debt Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Debt
Security a certificate of authentication substantially in the form provided for
herein manually executed by the Trustee for such Debt Security or on its behalf
pursuant to Section 6.14, and such certificate upon any Debt Security shall be
conclusive evidence, and the only evidence, that such Debt Security has been
duly authenticated and delivered hereunder.
If the Company shall establish pursuant to Section 3.1 that the Debt
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee shall,
in accordance with Section 3.3 and the Company Order with respect to such
series, authenticate and deliver one or more Global Securities in temporary or
permanent form that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the Outstanding Debt Securities of
such series to be represented by one or more Global Securities, (ii) shall be
registered in the name of the U.S. Depositary for such Global Security or
Securities or the nominee of such depositary, and (iii) shall bear a legend
substantially to the following effect: "This Debt Security may not be
transferred except as a whole by the Depositary
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to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor Depositary,
unless and until this Debt Security is exchanged in whole or in part for Debt
Securities in definitive form" and such other legend as may be required by the
U.S. Depositary.
SECTION 3.4 Temporary Debt Securities and Exchange of Debt Securities.
Pending the preparation of definitive Debt Securities of any particular
series, the Company may execute, and upon Company Order the Trustee for the Debt
Securities of such series shall authenticate and deliver, temporary Debt
Securities which are printed, lithographed, typewritten, photocopied or
otherwise produced, in any denomination, with like terms and conditions as the
definitive Debt Securities of like series in lieu of which they are issued, and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Debt Securities may determine, as evidenced by
their execution of such Debt Securities.
If temporary Debt Securities of any particular series are issued, the
Company will cause definitive Debt Securities of that series to be prepared
without unreasonable delay. After the preparation of such definitive Debt
Securities, the temporary Debt Securities of such series shall be exchangeable
for such definitive Debt Securities and of a like Stated Maturity and with like
terms and provisions upon surrender of the temporary Debt Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Debt Securities of any particular series, the Company shall
execute and (in accordance with a Company Order delivered at or prior to the
authentication of the first definitive Debt Security of such series) the Trustee
for the Debt Securities of such series shall authenticate and deliver in
exchange therefor a like principal amount of definitive Debt Securities of
authorized denominations of the same series and of a like Stated Maturity and
with like terms and provisions. Until exchanged as hereinabove provided, the
temporary Debt Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Debt Securities of the same
series and with like terms and conditions authenticated and delivered hereunder.
SECTION 3.5 Registration, Registration of Transfer and Exchange.
The Company shall keep or cause to be kept for the Debt Securities of
each series a register (the register maintained in such office being herein
sometimes referred to as the "Debt Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration, registration of transfer and exchange of Debt Securities.
Securities Transfer Company is hereby initially appointed "Debt Security
Registrar" for such purposes.
Upon surrender for registration of transfer of any Debt Security of any
particular series at the office or agency of the Company in a Place of Payment
for that series, the Company shall execute, and the Trustee for the Debt
Securities of each series shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Debt Securities of any
authorized
<PAGE> 26
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denominations, and of a like Stated Maturity and of a like series and aggregate
principal amount and with like terms and conditions.
Except as set forth below, at the option of the Holder, Debt Securities
of any particular series may be exchanged for other Debt Securities of any
authorized denominations, and of a like Stated Maturity and of a like series and
aggregate principal amount and with like terms and conditions, upon surrender of
the Debt Securities to be exchanged at such office or agency. Whenever any Debt
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee for such Debt Securities shall authenticate and deliver, the Debt
Securities which the Holder making the exchange is entitled to receive.
All Debt Securities issued upon any registration of transfer or
exchange of Debt Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities surrendered upon such registration of transfer
or exchange.
Every Debt Security presented or surrendered for registration of
transfer or exchange shall (if so required by the Company or the Trustee for
such Debt Security) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Debt Security Registrar
for such series duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Debt Securities,
other than exchanges pursuant to Section 3.4, 9.6, 11.3 or 11.7 not involving
any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Debt Securities of any series during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Debt Securities of that series selected for redemption under
Section 11.5 and ending at the close of business on the day of the mailing of
the relevant notice of redemption, or (ii) to register the transfer of or
exchange any Debt Security so selected for redemption as a whole or in part,
except the unredeemed portion of any Debt Security being redeemed in part.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for Debt Securities in definitive form, a
Global Security representing all or a portion of the Debt Securities of a series
may not be transferred except as a whole by the U.S. Depositary for such series
to a nominee of such U.S. Depositary or by a nominee of such U.S. Depositary to
such depositary or another nominee of such U.S. Depositary or by such U.S.
Depositary or any other such nominee to a successor U.S. Depositary for such
series or a nominee of such successor U.S. Depositary.
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If at any time the U.S. Depositary for the Debt Securities of a series
notifies the Company that it is unwilling or unable to continue as U.S.
Depositary for the Debt Securities of such series or if at any time the U.S.
Depositary for Debt Securities of such series shall no longer be a clearing
agency registered and in good standing under the Exchange Act or other
applicable statute or regulation, the Company shall appoint a successor U.S.
Depositary for the Debt Securities of such series. If a successor U.S.
Depositary for the Debt Securities is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such condition,
the Company will execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Debt Securities of such series,
will authenticate and deliver, Debt Securities of such series in definitive form
in an aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such series in exchange for such Global
Security or Securities.
The Company may at any time and in its sole discretion determine that
the Debt Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities.
In such event, the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Debt Securities
of such series, will authenticate and deliver, Debt Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing such series in exchange
for such Global Security or Securities.
If the Debt Securities of any series shall have been issued in the form
of one or more Global Securities and if an Event of Default with respect to the
Debt Securities of such series shall have occurred and be continuing, the
Company will promptly execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and deliver Debt Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing such series in exchange
for such Global Security or Securities.
If specified by the Company pursuant to Section 3.1 with respect to the
Debt Securities of a series, the U.S. Depositary for such series of Debt
Securities may surrender a Global Security for such series of Debt Securities in
exchange in whole or in part for Debt Securities of such series of like tenor
and terms and in definitive form on such terms as are acceptable to the Company
and such U.S. Depositary. Thereupon, the Company shall execute and the Trustee
shall authenticate and deliver, without charge:
(i) to each Person specified by the U.S. Depositary a new Debt
Security or Securities of the same series, of like tenor and terms and
of any authorized denomination as requested by such Person in an
aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the Global Security; and
(ii) to the U.S. Depositary a new Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal
amount of the Debt Securities delivered to Holders thereof.
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Upon the exchange of a Global Security for Debt Securities in
definitive form, such Global Security shall be canceled by the Trustee.
Definitive Debt 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 U.S. Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such definitive Debt Securities
to the Persons in whose names such Debt Securities are so registered.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Debt Securities.
If (i) any mutilated Debt Security is surrendered to the Trustee for
such Debt Security, or the Company and the Trustee for a Debt Security receive
evidence to their satisfaction of the destruction, loss or theft of any Debt
Security, and (ii) there is delivered to the Company, the Debt Security
Registrar and such Trustee such security or indemnity as may be required by them
to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or such Trustee that such Debt Security has
been acquired by a bona fide purchaser, the Company shall execute and upon its
request such Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Debt Security or in exchange for such mutilated Debt
Security, a new Debt Security of the same series and in a like principal amount
and of a like Stated Maturity and with like terms and conditions and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Debt Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Debt Security, pay such Debt Security (without
surrender thereof except in the case of a mutilated Debt Security) if the
applicant for such payment shall furnish to the Company, the Debt Security
Registrar and the Trustee for such Debt Security such security or indemnity as
may be required by them to save each of them harmless, and in case of
destruction, loss or theft, evidence satisfactory to the Company and such
Trustee and any agent of either of them of the destruction, loss or theft of
such Debt Security and the ownership thereof.
Upon the issuance of any new Debt Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including all fees and expenses of the Trustee and the Debt Security
Registrar for such Debt Security) connected therewith.
Every new Debt Security of any series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Debt Security or in exchange for any
mutilated Debt Security shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Debt
Security shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Debt Securities of the same series, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) the assertion of any Holder of all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Debt Securities.
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SECTION 3.7 Payment of Interest; Interest Rights Preserved.
Interest on any Debt Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall, if so provided in such
Debt Security, be paid to the Person in whose name that Debt Security (or one or
more Predecessor Debt Securities) is registered at the close of business on the
Regular Record Date for such interest payment.
Unless otherwise provided with respect to the Debt Securities of any
series, payment of interest may be made at the option of the Company by check
mailed or delivered to the address of the Person entitled thereto as such
address shall appear in the Debt Security Register or by transfer to an account
maintained by the payee with a bank located inside the United States.
Any interest on any Debt Security of any particular series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the registered Holder on the relevant Regular Record Date by virtue
of having been such Holder; and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Debt Securities of that series (or their
respective Predecessor Debt Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee for the
Debt Securities of such series in writing of the amount of Defaulted Interest
proposed to be paid on each Debt Security of that series and the date of the
proposed payment, and at the same time the Company shall deposit with such
Trustee an amount of money (except as otherwise specified pursuant to Section
3.1 for the Debt Securities of such series) equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to such Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon such Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall not be more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by such Trustee of the notice of the proposed payment. Such
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Debt Securities of that
series at such Holder's address as it appears in the Debt Security Register not
less than 10 days prior to such Special Record Date. Such Trustee may, in its
discretion, in the name and at the expense of the Company, cause a similar
notice to be published at least once in a newspaper published in the English
language customarily on each Business Day and of general circulation in New
York, New York, but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names the Debt Securities
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of that series (or their respective Predecessor Debt Securities) are registered
on such Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest on Debt
Securities of any particular series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Debt Securities
may be listed, and upon such notice as may be required by such exchange, if,
after notice is given by the Company to the Trustee for the Debt Securities of
such series of the proposed manner of payment pursuant to this clause, such
manner of payment shall be deemed practicable by such Trustee.
Subject to the foregoing provisions of this Section and Section 3.5,
each Debt Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Debt Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Debt Security.
SECTION 3.8 Persons Deemed Owners.
Prior to due presentment of a Debt Security for registration of
transfer, the Company, the Trustee for such Debt Security and any agent of the
Company or such Trustee may treat the Person in whose name any such Debt
Security is registered as the owner of such Debt Security for the purpose of
receiving payment of principal of (and premium, if any) and (subject to Section
3.7) interest, if any, on such Debt Security and for all other purposes
whatsoever, whether or not such Debt Security be overdue, and neither the
Company, such Trustee nor any agent of the Company or such Trustee shall be
affected by notice to the contrary.
SECTION 3.9 Cancellation.
All Debt Securities surrendered for payment, redemption, registration
of transfer or exchange, or delivered in satisfaction of any sinking fund
payment, shall, if surrendered to any Person other than the Trustee for such
Debt Securities, be delivered to such Trustee and shall be promptly canceled by
the Trustee. The Company may at any time deliver to the Trustee for Debt
Securities of a series for cancellation any Debt Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Debt Securities so delivered shall be promptly
canceled by such Trustee. Notwithstanding any other provision of this Indenture
to the contrary, in the case of a series, all the Debt Securities of which are
not to be originally issued at one time, a Debt Security of such series shall
not be deemed to have been Outstanding at any time hereunder if and to the
extent that, subsequent to the authentication and delivery thereof, such Debt
Security is delivered to the Trustee for such Debt Security for cancellation by
the Company or any agent thereof upon the failure of the original purchaser
thereof to make payment therefor against delivery thereof, and any Debt Security
so delivered to such Trustee shall be promptly canceled by it. No Debt
Securities shall be authenticated in lieu of or in exchange for any Debt
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Debt Securities held by the Trustee for such
Debt Securities shall be disposed of by such Trustee in accordance with its
standard procedures and a certificate of
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disposition evidencing such disposition of Debt Securities shall be provided to
the Company by such Trustee.
SECTION 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for Debt
Securities of any particular series, interest on the Debt Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE 4.
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Debt Securities of any
Series.
(a) The Company shall be deemed to have satisfied and
discharged the entire indebtedness on all the Debt Securities of any particular
series and, so long as no Event of Default shall be continuing, the Trustee for
the Debt Securities of such series, upon Company Request and at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of such indebtedness, when:
(1) either
(A) all Debt Securities of such series theretofore
authenticated and delivered (other than (i) any Debt Securities of such series
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.6 and (ii) Debt Securities of such series for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in the last paragraph of Section 10.3) have been
delivered to such Trustee for cancellation; or
(B) with respect to all Outstanding Debt Securities of such
series described in (A) above not theretofore so delivered to the Trustee for
the Debt Securities of such series for cancellation:
(i) the Company has deposited or caused to
be deposited with such Trustee as trust funds in
trust an amount (except as otherwise specified
pursuant to Section 3.1 for the Debt Securities of
such series), sufficient to pay and discharge the
entire indebtedness on all such Outstanding Debt
Securities of such series for principal (and premium,
if any) and interest, if any, to the Stated Maturity
or any Redemption Date as contemplated by Section
4.2, as the case may be; or
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(ii) the Company has deposited or caused to
be deposited with such Trustee as obligations in
trust such amount of U.S. Government Obligations as
will, as evidenced by a Certificate of a Firm of
Independent Public Accountants delivered to such
Trustee, together with the predetermined and certain
income to accrue thereon (without consideration of
any reinvestment thereof), be sufficient to pay and
discharge when due the entire indebtedness on all
such Outstanding Debt Securities of such series for
unpaid principal (and premium, if any) and interest,
if any, to the Stated Maturity or any Redemption Date
as contemplated by Section 4.2, as the case may be;
or
(iii) the Company has deposited or caused to
be deposited with such Trustee in trust an amount
equal to the amount referred to in clause (i) or (ii)
in any combination;
(2) the Company has paid or caused to be paid all other sums
payable with respect to the Debt Securities of such series;
(3) the Company has delivered to such Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of the
entire indebtedness on all Debt Securities of such series have been complied
with; and
(4) if the Debt Securities of such series are not to become
due and payable at their Stated Maturity within one year of the date of such
deposit or are not to be called for redemption within one year of the date of
such deposit under arrangements satisfactory to such Trustee as of the date of
such deposit, then the Company shall have given, not later than the date of such
deposit, notice of such deposit to the Holders of such Debt Securities.
(b) Upon the satisfaction of the conditions set forth in this
Section 4.1 with respect to all the Debt Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company, and the Holders of the Debt Securities of such
series shall look for payment only to the funds or obligations deposited with
the Trustee pursuant to Section 4.1(a)(1)(B); provided, however, that in no
event shall the Company be discharged from (i) any payment obligations in
respect of Debt Securities of such series which are deemed not to be Outstanding
under clause (3) of the definition thereof if such obligations continue to be
valid obligations of the Company under applicable law, (ii) from any obligations
under Sections 4.2(b), 6.7 and 6.10 and (iii) from any obligations under
Sections 3.5 and 3.63.6 (except that Debt Securities of such series issued upon
registration of transfer or exchange or in lieu of mutilated, destroyed, lost or
stolen Debt Securities shall not be obligations of the Company) and Sections 7.1
and 10.2; and provided, further, that in the event a petition for relief under
the Bankruptcy Act of 1978 or Title 11 of the United States Code or a successor
statute is filed and not discharged with respect to the Company within 91 days
after the deposit, the entire indebtedness on all Debt Securities of such series
shall not be
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discharged, and in such event the Trustee shall return such deposited funds or
obligations as it is then holding to the Company upon Company Request.
SECTION 4.2 Application of Trust Money.
(a) All money and obligations deposited with the Trustee for any series
of Debt Securities pursuant to Section 4.1 shall be held irrevocably in trust
and shall be made under the terms of an escrow trust agreement in form
satisfactory to such Trustee. Such money and obligations shall be applied by
such Trustee, in accordance with the provisions of the Debt Securities, this
Indenture and such escrow trust agreement, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as such Trustee may determine, to the Persons entitled thereto, of the principal
of (and premium, if any) and interest, if any, on the Debt Securities for the
payment of which such money and obligations have been deposited with such
Trustee. If Debt Securities of any series are to be redeemed prior to their
Stated Maturity, whether pursuant to any optional redemption provisions or in
accordance with any mandatory sinking fund requirement, the Company shall make
such arrangements as are satisfactory to the Trustee for such series of Debt
Securities for the giving of notice of redemption by such Trustee in the name,
and at the expense, of the Company.
(b) The Company shall pay and shall indemnify the Trustee for any
series of Debt Securities against any tax, fee or other charge imposed on or
assessed against U.S. Government Obligations deposited pursuant to Section 4.1
or the interest and principal received in respect of such U.S. Government
Obligations other than any such tax, fee or other charge which by law is payable
by or on behalf of Holders. The obligation of the Company under this Section
4.2(b) shall be deemed to be an obligation of the Company under Section 6.7(2).
(c) Anything in this Article Four to the contrary notwithstanding, the
Trustee for any series of Debt Securities shall deliver or pay to the Company
from time to time upon Company Request any money or U.S. Government Obligations
held by it as provided in Section 4.1 which, as expressed in a Certificate of a
Firm of Independent Public Accountants delivered to such Trustee, are in excess
of the amount thereof which would then have been required to be deposited for
the purpose for which such money or U.S. Government Obligations were deposited
or received provided such delivery can be made without liquidating any U.S.
Government Obligations.
SECTION 4.3 Satisfaction and Discharge of Indenture.
Upon compliance by the Company with the provisions of Section 4.1 as to
the satisfaction and discharge of each series of Debt Securities issued
hereunder, and if the Company has paid or caused to be paid all other sums
payable under this Indenture, this Indenture shall cease to be of any further
effect (except as otherwise provided herein). Upon Company Request and receipt
of an Opinion of Counsel and an Officers' Certificate complying with the
provisions of Section 1.2, the Trustees for all series of Debt Securities (at
the expense of the Company) shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture.
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Notwithstanding the satisfaction and discharge of this Indenture, any
obligations of the Company under Sections 3.4, 3.5, 3.6, 4.2(b), 6.7, 6.10, 7.1
and 10.2 and the obligations of the Trustee for any series of Debt Securities
under Section 4.2 shall survive.
SECTION 4.4 Reinstatement.
If the Trustee for any series of Debt Securities is unable to apply any
of the amounts (for purposes of this Section 4.4, "Amounts") or U.S. Government
Obligations, as the case may be, described in Section 4.1(a)(1)(B)(i) or (ii),
respectively, in accordance with the provisions of Section 4.1 by reason of any
legal proceeding or any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Debt Securities of such series shall be
revived and reinstated as though no deposit had occurred pursuant to Section 4.1
until such time as the Trustee for such series is permitted to apply all such
Amounts or U.S. Government Obligations, as the case may be, in accordance with
the provisions of Section 4.1; provided, however, that if, due to the
reinstatement of its rights or obligations hereunder, the Company has made any
payment of principal of (or premium, if any) or interest, if any, on such Debt
Securities, the Company shall be subrogated to the rights of the Holders of such
Debt Securities to receive payment from such Amounts or U.S. Government
Obligations, as the case may be, held by the Trustee for such series.
ARTICLE 5.
REMEDIES
SECTION 5.1 Events of Default.
"Event of Default" wherever used herein with respect to any particular
series of Debt Securities, unless otherwise specified in the Debt Security or
the Board Resolution with respect to that series of Debt Securities, means any
one of the following events (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any installment of interest upon any Debt
Security of that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on)
any Debt Security of that series at its Maturity; or
(3) default in the performance of, or breach of, any covenant or
warranty of the Company in respect of any Debt Security of that series contained
in this Indenture or in such Debt Securities (other than a covenant or warranty
a default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which expressly has been included in this Indenture
solely for
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the benefit of Debt Securities of a series other than that series) or in the
applicable Board Resolution under which such series is issued as contemplated by
Section 3.1 and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the Company by
the Trustee for the Debt Securities of such series or to the Company and such
Trustee by the Holders of at least 25% in principal amount of the Outstanding
Debt Securities of that series a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(4) if an event of default with respect to any other series of Debt
Securities or as defined in any mortgage, indenture, security agreement or other
instrument under which there may be issued, or by which there may be secured or
evidenced, any Indebtedness of the Company for money borrowed in excess of $10
million principal amount, whether such Indebtedness now exists or shall
hereafter be created, shall happen and, if such Indebtedness is not already
matured in accordance with its terms, shall result in such Indebtedness becoming
or being declared due and payable prior to the date on which it would otherwise
become due and payable, and such acceleration shall not have been rescinded or
annulled or such Indebtedness shall not have been discharged, in either case,
within a period of ten days after there has been given, by registered or
certified mail in the manner set forth in Section 1.5, to the Company by the
Trustee for the Debt Securities of that particular series referred to in the
first clause of this Section 5.1 or to the Company and such Trustee by the
Holders of at least 25% in principal amount of the Outstanding Debt Securities
of that particular series referred to in the first clause of this Section 5.1 a
written notice specifying such event of default and requiring the Company to
cause such acceleration to be rescinded or annulled or to cause such
Indebtedness to be discharged and stating that such notice is a "Notice of
Default" hereunder; provided, that if prior to the entry of judgment in favor of
the Trustee, such default under such indenture or instrument shall be remedied
or cured by the Company or waived by the holders of such Indebtedness, then the
Event of Default hereunder shall be deemed likewise to have been remedied, cured
or waived; and provided, further, that, if such default results from an action
of the United States government or a foreign government which prevents the
Company from performing its obligations under such agreement, indenture or
instrument, as evidenced by an Officer's Certificate delivered to the Trustee,
the occurrence of such default will not be an Event of Default hereunder; and
provided, further, however, that, subject to the provisions of Sections 6.1 and
6.2, such Trustee shall not be deemed to have knowledge of such default unless
either (A) a Responsible Officer of such Trustee assigned to its Corporate Trust
Office shall have actual knowledge of such default or (B) the Trustee shall have
received written notice thereof from the Company, from the Holders of 10% or
more in principal amount of the Outstanding Debt Securities of such other
series, from the holder of any such Indebtedness or from the trustee under any
such mortgage, indenture, security agreement or other instrument; or
(5) the entry against the Company of one or more judgments, decrees or
orders by a court having jurisdiction in the premises from which no appeal may
be or is taken for the payment of money, either individually or in the
aggregate, in excess of $10 million and the continuance of such judgment, decree
or order unsatisfied and in effect for any period of 60 consecutive days without
a stay of execution and there has been given, by registered or certified mail in
the manner set forth in Section 1.5, to the Company by the Trustee for the Debt
Securities of such series or to the
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Company and such Trustee by the Holders of at least 25% in principal amount of
the Outstanding Debt Securities of such series a written notice specifying such
entry and continuance of such judgment, decree or order and stating that such
notice is a "Notice of Default" hereunder; provided, however, that subject to
the provisions of Sections 6.1 and 6.2, such Trustee shall not be deemed to have
knowledge of such entry and continuance of such judgment, decree or order unless
either (A) a Responsible Officer of such Trustee assigned to its Corporate Trust
Office shall have actual knowledge thereof or (B) the Trustee shall have
received written notice thereof from the Company or from the Holders of 10% or
more in principal amount of the Outstanding Debt Securities of such series; or
(6) the Company shall commence any case or proceeding seeking to have
an order for relief entered on its behalf as debtor or to adjudicate it as
bankrupt or insolvent or seeking reorganization, liquidation, dissolution,
winding-up, arrangement, composition or readjustment of its debts or any other
relief under any bankruptcy, insolvency, reorganization, liquidation,
dissolution, arrangement, composition, readjustment of debt or other similar act
or law of any jurisdiction, domestic or foreign, now or hereafter existing; or
the Company shall apply for a receiver, custodian or trustee (other than any
trustee appointed as a mortgagee or secured party in connection with the
issuance of indebtedness for borrowed money of the Company) of it or for all or
a substantial part of its property; or the Company shall make a general
assignment for the benefit of creditors; or the Company shall take any corporate
action in furtherance of any of the foregoing; or
(7) any case or proceeding against the Company shall be commenced
seeking to have an order for relief entered against it or to adjudicate it as
bankrupt or insolvent or seeking reorganization, liquidation, dissolution,
winding-up, arrangement, composition or readjustment of its debts or any other
relief under any bankruptcy, insolvency, reorganization, liquidation,
dissolution, arrangement, composition, readjustment of debt or other similar act
or law of any jurisdiction, domestic or foreign, now or hereafter existing; or a
receiver, custodian or trustee (other than any trustee appointed as a mortgagee
or secured party in connection with the issuance of indebtedness for borrowed
money of the Company) of the Company or for all or a substantial part of its
property shall be appointed in any such case or proceeding; and such case or
proceeding (A) results in the entry of an order for relief or a similar order
against it or (B) shall continue unstayed and in effect for a period of 60
consecutive days.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any particular series of Debt
Securities occurs and is continuing, then and in every such case either the
Trustee for the Debt Securities of such series or the Holders of not less than
25% in principal amount of the Outstanding Debt Securities of that series may
declare the entire principal amount (or, in the case of Discounted Debt
Securities, such lesser amount as may be provided for in the terms of that
series) of all the Debt Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to such Trustee if given
by Holders), and upon any such declaration of acceleration such principal or
such lesser amount, as the case may be, together with accrued interest and all
other amounts owing
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hereunder, shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which are hereby expressly waived.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee for the Debt Securities of any series as hereinafter in this Article
provided, the Holders of a majority in principal amount of the Outstanding Debt
Securities of that series, by written notice to the Company and such Trustee,
may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with such Trustee a sum
sufficient to pay
(A) all overdue interest on all Debt Securities of that series;
(B) the principal of (and premium, if any, on) any Debt Securities of
that series which have become due otherwise than by such declaration of
acceleration and interest thereon from the date such principal became due at a
rate per annum equal to the rate borne by the Debt Securities of such series
(or, in the case of Discounted Debt Securities, the Debt Securities' Yield to
Maturity), to the extent that the payment of such interest shall be legally
enforceable;
(C) to the extent that payment of such interest is lawful, interest
upon overdue interest at a rate per annum equal to the rate borne by the Debt
Securities of such series (or, in the case of Discounted Debt Securities, the
Debt Securities' Yield to Maturity); and
(D) all sums paid or advanced by such Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of such Trustee,
its agents and counsel and all other amounts due to such Trustee under Section
6.7; and
(2) all Events of Default with respect to the Debt Securities of such
series, other than the nonpayment of the principal of Debt Securities of that
series which has become due solely by such acceleration, have been cured or
waived as provided in Section 5.13. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest upon any Debt
Security of any series when such interest becomes due and payable and such
default continues for a period of 30 days; or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Debt Security of any series at its Maturity, the Company will, upon
demand of the Trustee for the Debt Securities of such series, pay to it, for the
benefit of the Holders of such Debt Securities, the whole amount then due and
payable on such Debt Securities for principal (and premium, if any) and
interest, if any, with interest upon the overdue principal (and premium, if any)
and, to the extent that
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payment of such interest shall be legally enforceable, upon any overdue
installments of interest at a rate per annum equal to the rate borne by such
Debt Securities (or, in the case of Discounted Debt Securities, the Debt
Securities' Yield to Maturity); and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of such Trustee,
its agents and counsel and all other amounts due to such Trustee under Section
6.7.
If the Company fails to pay such amounts forthwith upon such demand,
such Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceedings to judgment or final decree, and may enforce the same
against the Company and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the Company, wherever
situated.
If an Event of Default with respect to Debt Securities of any
particular series occurs and is continuing, the Trustee for the Debt Securities
of such series may in its discretion proceed to protect and enforce its rights
and the rights of the Holders of Debt Securities of that series by such
appropriate judicial proceedings as such Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relating to the Company or the property of the Company or
its creditors, the Trustee for the Debt Securities of any series (irrespective
of whether the principal (or lesser amount in the case of Discounted Debt
Securities) of any Debt Security of such series shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether
such Trustee shall have made any demand on the Company for the payment of
overdue principal or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise
(i) to file and prove a claim for the whole amount of
principal (or lesser amount in the case of Discounted Debt
Securities) (and premium, if any) and interest, if any, owing
and unpaid in respect of the Debt Securities of such series
and to file such other papers or documents as may be necessary
or advisable in order to have the claims of such Trustee
(including any claim for the reasonable compensation,
expenses, disbursements and advances of such Trustee, its
agents and counsel and all other amounts due to such Trustee
under Section 6.7) and of the Holders of the Debt Securities
of such series allowed in such judicial proceeding;
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same; and
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(iii) unless prohibited by law or applicable
regulations, to vote on behalf of the Holders of the Debt
Securities of such series in any election of a trustee in
bankruptcy or other person performing similar functions; and
any receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is
hereby authorized by each Holder of Debt Securities to make
such payments to such Trustee, and in the event that such
Trustee shall consent to the making of such payments directly
to the Holders of Debt Securities, to pay to such Trustee any
amount due to it for the reasonable compensation, expenses,
disbursements and advances of such Trustee, its agents and
counsel, and any other amounts due such Trustee under Section
6.7.
Nothing herein contained shall be deemed to authorize the Trustee for
the Debt Securities of any series to authorize or consent to or accept or adopt
on behalf of any Holder of a Debt Security any plan of reorganization,
arrangement, adjustment or composition affecting the Debt Securities of such
series or the rights of any Holder thereof, or to authorize the Trustee for the
Debt Securities of any series to vote in respect of the claim of any Holder in
any such proceeding, except as aforesaid, for the election of a trustee in
bankruptcy or other person performing similar functions.
SECTION 5.5 Trustee May Enforce Claims Without Possession of Debt
Securities.
All rights of action and claims under this Indenture or the Debt
Securities of any series may be prosecuted and enforced by the Trustee for the
Debt Securities of any series without the possession of any of the Debt
Securities of such series or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by such Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of such Trustee, its agents and counsel and all other
amounts due to such Trustee under Section 6.7, be for the ratable benefit of the
Holders of the Debt Securities of such series in respect of which such judgment
has been recovered.
SECTION 5.6 Application of Money Collected.
Any money collected by the Trustee for the Debt Securities of any
series pursuant to this Article with respect to the Debt Securities of such
series shall be applied in the following order, at the date or dates fixed by
such Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, if any, upon presentation of the
Debt Securities of such series and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due such Trustee under
Section 6.7;
Second: To the payment of the amounts then due and unpaid upon
the Debt Securities of such series for principal of (and premium, if
any) and interest, if any, on such Debt Securities in respect of which
or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts
due
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and payable on such Debt Securities for principal (and premium, if any)
and interest, if any, respectively; and
Third: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 5.7 Limitation on Suits.
No Holder of any Debt Security of any particular series shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(1) an Event of Default with respect to that series shall have
occurred and be continuing and such Holder shall have previously given
written notice to the Trustee for the Debt Securities of such series of
such default and the continuance thereof;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of that series shall have made written
request to the Trustee for the Debt Securities of such series to
institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to such Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) such Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to such Trustee during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Debt Securities of
that series; it being understood and intended that no Holder or Holders
of Debt Securities of that series shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other
Holders of Debt Securities of that series, or to enforce any right
under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the Holders of Debt Securities of that
series.
SECTION 5.8 Unconditional Right of Holders to Receive Principal (and
Premium, if any) and Interest, if any.
Notwithstanding any other provision in this Indenture, the Holder of
any Debt Security shall have the right which is absolute and unconditional to
receive payment of the principal of (and premium, if any) and (subject to
Section 3.7) interest, if any, on such Debt Security on the respective Stated
Maturities expressed in such Debt Security (or, in the case of redemption, on
the Redemption
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Date) and to institute suit for the enforcement of any such payment, and such
right shall not be impaired without the consent of such Holder.
SECTION 5.9 Restoration of Rights and Remedies.
If the Trustee for the Debt Securities of any series or any Holder of a
Debt Security has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to such Trustee or to such Holder, then
and in every such case the Company, such Trustee and the Holders of Debt
Securities shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of such Trustee and such Holders shall continue as
though no such proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Debt Securities in the last paragraph of
Section 3.6, no right or remedy herein conferred upon or reserved to the Trustee
for the Debt Securities of any series or to the Holders of Debt Securities is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee for the Debt Securities of any
series or of any Holder of any Debt Security of such series to exercise any
right or remedy accruing upon any Event of Default with respect to the Debt
Securities of such series shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to such Trustee for the Debt Securities
of any series or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by such Trustee or by the Holders, as the case may
be.
SECTION 5.12 Control by Holders.
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any particular series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee for the Debt Securities of such series with respect to the Debt
Securities of that series or exercising any trust or power conferred on such
Trustee with respect to such Debt Securities, provided that:
(1) such direction shall not be in conflict with any rule of law or
with this Indenture; and
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(2) such Trustee may take any other action deemed proper by such
Trustee which is not inconsistent with such direction.
SECTION 5.13 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any particular series may on behalf of the
Holders of all the Debt Securities of that series waive any past default
hereunder with respect to that series and its consequences, except:
(1) a default in the payment of the principal of (or premium, if any)
or interest, if any, on any Debt Security of that series; or
(2) a default with respect to a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Debt Security of that series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture, and any such waiver shall be binding upon all
subsequent Holders of such Indebtedness; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 5.14 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law, wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee for any series of Debt Securities, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
SECTION 5.15 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Debt
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Debt Securities of such series, or to any suit
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instituted by any Holder for the enforcement of the payment of the principal of
(or premium, if any) or interest on any Debt Security on or after the Stated
Maturity or Maturities expressed in such Debt Security (or, in the case of
redemption, on or after the Redemption Date).
ARTICLE 6.
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with
respect to the Debt Securities of any series for which the Trustee is serving as
such,
(1) such Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against such Trustee; and
(2) in the absence of bad faith on its part, such
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to such
Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by
any provisions hereof are specifically required to be
furnished to such Trustee, such Trustee shall be under a duty
to examine the same to determine whether or not they conform
to the requirements of this Indenture.
(b) In case an Event of Default with respect to a series of
Debt Securities has occurred and is continuing, the Trustee for the Debt
Securities of such series shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee for Debt Securities of any series from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that no provision of this Indenture shall require the Trustee
for any series of Debt Securities to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee for any series of Debt Securities
shall be subject to the provisions of this Section.
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SECTION 6.2 Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to Debt Securities of any particular series, the Trustee for the Debt
Securities of such series shall give to Holders of Debt Securities of that
series, in the manner set forth in Section 1.6, notice of such default known to
such Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest, if any, on any Debt Security of that
series, or in the deposit of any sinking fund payment with respect to Debt
Securities of that series, such Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of such Trustee in good
faith determines that the withholding of such notice is in the interest of the
Holders of Debt Securities of that series; and provided, further, that in the
case of any default of the character specified in Section 5.1(3) with respect to
Debt Securities of that series no such notice to Holders shall be given until at
least 60 days after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Debt Securities of that
series.
SECTION 6.3 Certain Rights of Trustee.
Except as otherwise provided in Section 6.1:
(a) the Trustee for any series of Debt Securities may rely and
shall be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture such
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, such Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(d) such Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) such Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Debt Securities of any series pursuant to
this Indenture for which it is acting as Trustee, unless such Holders shall have
offered to such Trustee security or indemnity reasonably satisfactory to such
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Trustee against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) such Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture or other paper or document, but such Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters at it may
see fit, and, if such Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney; and
(g) such Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and such Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 6.4 Not Responsible for Recitals or Issuance of Debt
Securities.
The recitals contained herein and in the Debt Securities, except the
Trustee's certificates of authentication thereof, shall be taken as the
statements of the Company, and neither the Trustee for any series of Debt
Securities, nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee for any series of Debt Securities makes no
representations as to the validity or sufficiency of this Indenture or of the
Debt Securities of any series. Neither the Trustee for any series of Debt
Securities nor any Authenticating Agent shall be accountable for the use or
application by the Company of Debt Securities or the proceeds thereof.
SECTION 6.5 May Hold Debt Securities.
The Trustee for any series of Debt Securities, any Authenticating
Agent, Paying Agent, Debt Security Registrar or any other agent of the Company
or such Trustee, in its individual or any other capacity, may become the owner
or pledgee of Debt Securities and, subject to Sections 6.8 and 6.13, may
otherwise deal with the Company with the same rights it would have if it were
not such Trustee, Authenticating Agent, Paying Agent, Debt Security Registrar or
other agent.
SECTION 6.6 Money Held in Trust.
Money held by the Trustee for any series of Debt Securities in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee for any series of Debt Securities shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
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SECTION 6.7 Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee for any series of Debt Securities
from time to time reasonable compensation for all services rendered by
it hereunder (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee for any series of Debt Securities upon its
request for all reasonable expenses, disbursements and advances
incurred or made by such Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify such Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee for any series of Debt Securities shall have a lien
prior to the Debt Securities upon all property and funds held or collected by
such Trustee as such, except funds held in trust for the payment of principal of
(and premium, if any) or interest, if any, on any particular series Debt
Securities. Such lien shall survive satisfaction and discharge of this
Indenture.
SECTION 6.8 Disqualification; Conflicting Interests.
The Trustee for any series of Debt Securities shall be subject to and
comply with the provisions of Section 310(b) of the Trust Indenture Act during
the period of time required thereby. Nothing herein shall prevent the Trustee
for any series of Debt Securities from filing with the Commission the
application referred to in the penultimate paragraph of Section 310(b) of the
Trust Indenture Act. In determining whether the Trustee for any series of Debt
Securities has a conflicting interest as defined in Section 310(b) of the Trust
Indenture Act, the Debt Securities of any other series of Debt Securities shall
be excluded.
SECTION 6.9 Corporate Trustee Required, Different Trustees for
Different Series; Eligibility.
There shall at all times be a Trustee hereunder for the Debt Securities
of each series which satisfies the requirements of Trust Indenture Act Sections
310(a)(1), 310(a)(2) and 310(a)(5), has a combined capital and surplus of at
least $50,000,000 and is subject to supervision or examination
<PAGE> 47
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by Federal, State or District of Columbia authority. A different Trustee may be
appointed by the Company for each series of Debt Securities prior to the
issuance of such Debt Securities. If the initial Trustee for any series of Debt
Securities is to be other than Star Bank, N.A., the Company and such Trustee
shall, prior to the issuance of such Debt Securities, execute and deliver an
indenture supplemental hereto, which shall provide for the appointment of such
Trustee as Trustee for the Debt Securities of such series and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such Trustee.
If at any time the Trustee for the Debt Securities of any series shall cease to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 6.10 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee for the Debt
Securities of any series and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section
6.11.
(b) The Trustee for the Debt Securities of any series may
resign at any time with respect to the Debt Securities of such series by giving
written notice thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 6.11 shall not have been delivered to the
Trustee for the Debt Securities of such series within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Debt Securities of such series.
(c) The Trustee for the Debt Securities of any series may be
removed at any time with respect to the Debt Securities of such series by Act of
the Holders of a majority in principal amount of the Outstanding Debt Securities
of such series, delivered to such Trustee and to the Company.
(d) If at any time:
(1) the Trustee for the Debt Securities of any series shall
fail to comply with Section 310(b) of the Trust Indenture Act pursuant
to Section 6.8 after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Debt Security of such
series for at least six months unless the Trustee's duty to resign is
stayed in accordance with Section 310(b) of the Trust Indenture Act, or
(2) such Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
<PAGE> 48
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(3) such Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of such Trustee or of
its property shall be appointed or any public officer shall take charge
or control of such Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove such Trustee or (ii) any Holder who has been a bona fide Holder
of a Debt Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of such Trustee and the
appointment of a successor Trustee.
(e) If the Trustee for the Debt Securities of any series shall
resign, be removed or become incapable of acting, or if a vacancy shall occur in
the office of Trustee for the Debt Securities of any series for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee with
respect to the Debt Securities of such series and shall comply with the
applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Debt Securities of such series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of
Section 6.11, become the successor Trustee for the Debt Securities of such
series and supersede the successor Trustee appointed by the Company. If no
successor Trustee for the Debt Securities of such series shall have been so
appointed by the Company or the Holders and shall have accepted appointment in
the manner required by Section 6.11, and if such Trustee is still incapable of
acting, any Holder who has been a bona fide Holder of a Debt Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Debt Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Debt Securities of any series and
each appointment of a successor Trustee with respect to the Debt Securities of
any series in the manner and to the extent provided in Section 1.6. Each notice
shall include the name of the successor Trustee with respect to the Debt
Securities of that series and the address of its Corporate Trust Office.
SECTION 6.11 Acceptance of Appointment by Successor.
(a) Every such successor Trustee appointed hereunder with respect to
the Debt Securities of any series shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all
<PAGE> 49
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the rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder, subject to the lien provided for in Section
6.7.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Debt Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Debt
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Debt Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debt Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and each Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Debt Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Debt Securities of that or those series to
which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in Subsections (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee for the Debt Securities of any
series shall be qualified and eligible under this Article.
(e) Notwithstanding replacement of the Trustee pursuant to Section
6.10, the Company's obligations under Section 6.7 shall continue for the benefit
of the retiring Trustee with respect to expenses, losses and liabilities
incurred by it prior to such replacement.
<PAGE> 50
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SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee or the Authenticating Agent, as
the case may be, for the Debt Securities of any series may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Trustee or such
Authenticating Agent, as the case may be, shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of such
Trustee, shall be the successor of such Trustee or such Authenticating Agent, as
the case may be, hereunder, provided such successor corporation shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties hereto
or the Trustee, the Authenticating Agent or their respective successor
corporations. In case any Debt Securities shall have been authenticated, but not
delivered, by the Trustee or the Authenticating Agent for such series then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee or Authenticating Agent, as the case may be, may adopt
such authentication and deliver the Debt Securities so authenticated with the
same effect as if such successor Trustee or successor Authenticating Agent had
itself authenticated such Debt Securities.
SECTION 6.13 Preferential Collection of Claims Against Company.
The Trustee for any particular series of Debt Securities shall comply
with Section 311(a) of the Trust Indenture Act for that particular series of
Debt Securities, excluding any creditor relationship listed in Section 311(b) of
that Act. If the Trustee for any particular series of Debt Securities shall
resign or be removed as Trustee for that particular series of Debt Securities,
it shall be subject to Section 311(a) of the Trust Indenture Act to the extent
provided therein.
SECTION 6.14 Authenticating Agents.
From time to time the Trustee for the Debt Securities of any series
may, subject to its sole discretion, appoint one or more Authenticating Agents
with respect to the Debt Securities of such series, which may include the
Company or any Affiliate of the Company, with power to act on the Trustee's
behalf and subject to its discretion in the authentication and delivery of Debt
Securities of such series in connection with transfers and exchanges hereunder,
including but not limited to those pursuant to Sections 3.4, 3.5, 3.6 and 11.7,
as fully to all intents and purposes as though such Authenticating Agent had
been expressly authorized by those Sections of this Indenture to authenticate
and deliver Debt Securities of such series. For all purposes of this Indenture,
the authentication and delivery of Debt Securities of such series by an
Authenticating Agent for such Debt Securities pursuant to this Section shall be
deemed to be authentication and delivery of such Debt Securities "by the
Trustee" for the Debt Securities of such series. Any such Authenticating Agent
shall at all times be a corporation organized and doing business under the laws
of the United States or of any State, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by Federal, State or
District of Columbia authority. If such Authenticating Agent publishes reports
of condition at least annually pursuant to law or the requirements of such
supervising or examining authority, then for the purposes of this Section the
combined capital and surplus of such corporation shall be
<PAGE> 51
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deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time an Authenticating Agent for any
series of Debt Securities shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any Authenticating Agent for any series of Debt Securities may resign
at any time by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Debt Securities may at
any time terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Company in the
manner set forth in Section 1.5. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time any Authenticating Agent for any
series of Debt Securities shall cease to be eligible under this Section, the
Trustee for such series may appoint a successor Authenticating Agent, shall give
written notice of such appointment to the Company and shall give written notice
of such appointment to all Holders of Debt Securities of such series in the
manner set forth in Section 1.6. Any successor Authenticating Agent, upon
acceptance of its appointment hereunder, shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Trustee for the Debt Securities of each series agrees to pay to any
Authenticating Agent for such series from time to time reasonable compensation
for its services, and such Trustee shall be entitled to be reimbursed for such
payments, subject to Section 6.7.
If an appointment with respect to one or more series of Debt Securities
is made pursuant to this Section, the Debt Securities of such series may have
endorsed thereon, in addition to the Trustee's certification of authentication,
an alternate certificate of authentication in the following form:
"This is one of the Debt Securities, of the series designated herein, described
in the within-mentioned Indenture.
STAR BANK, N.A.
By: ________________________________________
As Authenticating Agent
By: ________________________________________
Authorized Signer
<PAGE> 52
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ARTICLE 7.
HOLDERS' REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Preservation of Information; Company to Furnish Trustee
Names and Addresses of Holders.
The Trustee for any particular series of Debt Securities shall preserve
in as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of Holders of the Debt Securities of that
series. Neither the Company nor such Trustee shall be under any responsibility
with regard to the accuracy of such list. With respect to each series of Debt
Securities, the Company, in furnishing information regarding such Holders to
such Trustee, and such Trustee, will satisfy the requirements imposed upon each
of them by Section 312(a) of the Trust Indenture Act.
SECTION 7.2 Communications to Holders.
Holders of any particular series of Debt Securities may communicate
with other Holders of Debt Securities of that series with respect to their
rights under this Indenture or under such series of Debt Securities pursuant to
Section 312(b) of the Trust Indenture Act. The Company and the Trustee for any
particular series of Debt Securities and any and all other Persons benefited by
this Indenture shall have the protection afforded by Section 312(c) of the Trust
Indenture Act.
SECTION 7.3 Reports by Trustee.
Within 60 days after November 15 of each year commencing with the year
following the first issuance of Debt Securities, the Trustee for the Debt
Securities of each series shall transmit by mail to all Holders of the Debt
Securities of such series a brief report dated as of such date that complies
with Section 313(a) of the Trust Indenture Act, but only if such report is
required in any year under such Section 313(a) of the Trust Indenture Act. With
respect to each series of Debt Securities, the Trustee shall also comply with
Sections 313(b) and 313(c) of the Trust Indenture Act. At any time a report is
mailed to the Holders of any particular series of Debt Securities, a copy of
such report shall be filed with the Commission and with each securities
exchange, if any, on which the Debt Securities of such series are listed. With
respect to each series of Debt Securities, the Company will notify the
applicable Trustee when such series of Debt Securities is listed on any
securities exchange.
SECTION 7.4 Reports by Company
The Company shall file such annual and/or periodic reports and
certificates with the Trustees for each series of Debt Securities and/or with
the Commission and/or with the Holders of each series of Debt Securities as are
required by the provisions of Section 314(a) of the Trust Indenture Act.
<PAGE> 53
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ARTICLE 8.
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or sell, convey, assign, transfer, lease or otherwise dispose of all
or substantially all of its properties and assets as an entirety to any Person
unless:
(1) either (i) the Company shall be the continuing corporation
or (ii) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person which
acquires by sale, assignment, conveyance, transfer, lease or
disposition all or substantially all of the properties and assets of
the Company as an entirety (x) shall be a corporation, partnership or
trust organized and validly existing under the laws of the United
States or any State thereof or the District of Columbia and (y) shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of (and premium, if any) and
interest, if any, on all the Debt Securities and the performance and
observance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction (and
treating any Indebtedness not previously an obligation of the Company
or a Subsidiary which becomes the obligation of the Company or any of
its Subsidiaries in connection with or as a result of such transaction
as having been incurred at the time of such transaction), no Event of
Default, and no event which, after notice or lapse of time, or both,
would become an Event of Default, shall have occurred and be
continuing;
(3) such other conditions, if any, as may be set forth in the
Board Resolution establishing the Debt Securities of that particular
series are met or complied with; and
(4) the Company has delivered to the Trustee for each series
of Debt Securities an Officers' Certificate and an Opinion of Counsel
each stating that such consolidation, merger, conveyance or transfer
and such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 8.2 Successor Corporation Substituted.
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety in accordance
with Section 8.1, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance or transfer is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
Person had been
<PAGE> 54
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named as the Company herein and thereafter the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and the Debt
Securities and, in the event of any such consolidation, merger, conveyance or
transfer, the Company as the predecessor corporation may thereupon or at any
time thereafter be dissolved, wound up, or liquidated.
ARTICLE 9.
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Debt Securities, the Company,
when authorized by a Board Resolution, and the Trustee for the Debt Securities
of any or all series, at any time and from time to time, may enter into one or
more indentures supplemental hereto, in form satisfactory to such Trustee, for
any of the following purposes:
(1) to evidence the succession of another corporation to the
Company pursuant to Article 8, and the assumption by any such successor
of the covenants of the Company herein and in the Debt Securities
contained; or
(2) to add to the covenants of the Company, for the benefit of
the Holders of all or any particular series of Debt Securities (and, if
such covenants are to be for the benefit of fewer than all series of
Debt Securities, stating that such covenants are being included solely
for the benefit of such series), or to surrender any right or power
herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to
any or all series of Debt Securities (and, if any such Event of Default
applies to fewer than all series of Debt Securities, stating each
series to which such Event of Default applies); or
(4) to add to, change or eliminate any of the provisions of
this Indenture, provided, however, that any such addition, change or
elimination shall become effective only when there is no Debt Security
Outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such
provision and as to which such supplemental indenture would apply; or
(5) to evidence and provide for the acceptance of appointment
hereunder of a Trustee other than Star Bank, N.A. as Trustee for a
series of Debt Securities and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.9; or
<PAGE> 55
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(6) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt Securities of
one or more series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11(b); or
(7) to establish the conditions, limitations and restrictions
on the authorized amount, form, terms or purposes of issue,
authentication and delivery of Debt Securities, as herein set forth,
and other conditions, limitations and restrictions thereafter to be
observed; or
(8) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
satisfaction and discharge of any series of Debt Securities pursuant to
Section 4.1; provided, however, that any such action shall not
adversely affect the interests of the Holders of Debt Securities of
such series or any other series of Debt Securities in any material
respect; or
(9) to add to or change or eliminate any provisions of this
Indenture as shall be necessary or desirable in accordance with any
amendments to the Trust Indenture Act; or
(10) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, to convey, transfer, assign, mortgage or pledge any property to
or with the Trustee for the Debt Securities of any series or to
surrender any right or power herein conferred upon the Company, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided such action shall not adversely affect
the rights of the Holders of Debt Securities of any particular series
in any material respect.
SECTION 9.2 Supplemental Indentures With Consent of Holders.
The Company, when authorized by a Board Resolution, and the Trustee for
the Debt Securities of any or all series may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of such Debt Securities
under this Indenture, but only with the consent of the Holders of more than 50%
in aggregate principal amount of the Outstanding Debt Securities of each series
of Debt Securities then Outstanding affected thereby, in each case by Act of
said Holders of Debt Securities of each such series delivered to the Company and
the Trustee for Debt Securities of each such series; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Debt Security affected thereby:
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Debt Security, or reduce the principal
amount thereof or the rate of interest thereon, if any, or any premium payable
upon the redemption thereof, or reduce the amount of the principal
<PAGE> 56
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of a Discounted Debt Security that would be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 5.2, or change the
Place of Payment, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date); or
(2) reduce the percentage in principal amount of the Outstanding Debt
Securities of any particular series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture; or
(3) modify any of the provisions of this Section or Section 5.13 or
10.7, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Debt Security affected thereby; provided, however, that this
clause shall not be deemed to require the consent of any Holder of a Debt
Security with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 10.7, or the deletion of this
proviso, in accordance with the requirements of Sections 6.9, 6.11(b), 9.1(6)
and 9.1(7).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Debt Securities, or which
modifies the rights of the Holders of Debt Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Debt Securities of any other
series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.3 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee for any series of Debt
Securities shall be entitled to receive, and (subject to Section 6.1) shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee for any series of Debt Securities may, but shall not be
obligated to, enter into any such supplemental indenture which affects such
Trustee's own rights, liabilities, duties or immunities under this Indenture or
otherwise.
SECTION 9.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith and such supplemental
indenture shall form a part of this
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Indenture for all purposes; and every Holder of Debt Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.5 Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.6 Reference in Debt Securities to Supplemental Indentures.
Debt Securities of any particular series authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee for the Debt Securities of such series,
bear a notation in form approved by such Trustee as to any matter provided for
in such supplemental indenture. If the Company shall so determine, new Debt
Securities of any series so modified as to conform, in the opinion of the
Trustee for the Debt Securities of such series and the Board of Directors, to
any such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by such Trustee in exchange for Outstanding Debt
Securities of such series.
ARTICLE 10.
COVENANTS
SECTION 10.1 Payment of Principal (and Premium, if any) and Interest,
if any.
The Company agrees, for the benefit of each particular series of Debt
Securities, that it will duly and punctually pay (except as otherwise specified
pursuant to Section 3.1 for the Debt Securities of such series) the principal of
(and premium, if any) and interest, if any, on that series of Debt Securities in
accordance with the terms of the Debt Securities of such series and this
Indenture.
SECTION 10.2 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for a series of Debt
Securities an office or agency where Debt Securities of that series may be
presented or surrendered for payment, where Debt Securities of that series may
be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company with respect to the Debt Securities of that
series and this Indenture may be served. The Company will give prompt written
notice to the Trustee for the Debt Securities of that series of the location,
and any change in the location, of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency in respect of
any series of Debt Securities or shall fail to furnish the Trustee for the Debt
Securities of that series with the address thereof, such presentations (to the
extent permitted by law) and surrenders of Debt Securities of that series may be
made and notices and demands may be made or
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served at the Corporate Trust Office of such Trustee, and the Company hereby
appoints the same as its agent to receive such respective presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside the Place of Payment) where the Debt
Securities of one or more series may be presented or surrendered for any or all
of the purposes specified above in this Section and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for such purpose. The Company will
give prompt written notice to the Trustee for the Debt Securities of each series
so affected of any such designation or rescission and of any change in the
location of any such office or agency.
SECTION 10.3 Money for Debt Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any particular series of Debt Securities, it will, on or not more
than one Business Day before each due date of the principal of (and premium, if
any) or interest, if any, on any of the Debt Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum (except as otherwise specified pursuant to Section 3.1 for the Debt
Securities of such series) sufficient to pay the principal (and premium, if any)
and interest, if any, so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and will promptly notify
the Trustee for the Debt Securities of such series of its action or failure so
to act.
Whenever the Company shall have one or more Paying Agents for any
particular series of Debt Securities, it will, prior to each due date of the
principal of (and premium, if any) or interest, if any, on any such Debt
Securities, deposit with a Paying Agent for the Debt Securities of such series a
sum sufficient to pay the principal (and premium, if any) and interest, if any,
so becoming due, such sum to be held in trust for the benefit of the Persons
entitled thereto, and (unless such Paying Agent is the Trustee for the Debt
Securities of such series) the Company will promptly notify such Trustee of its
action or failure so to act.
The Company will cause each Paying Agent for any particular series of
Debt Securities other than the Trustee for the Debt Securities of such series to
execute and deliver to such Trustee an instrument in which such Paying Agent
shall agree with such Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest, if any, on Debt Securities of that series in trust
for the benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give such Trustee notice of any default by the Company in the
making of any payment of principal (or premium, if any) and interest, if any, on
Debt Securities of that series;
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(3) at any time during the continuation of any such default, upon the
written request of such Trustee, forthwith pay to such Trustee all sums so held
in trust by such Paying Agent; and
(4) acknowledge, accept and agree to comply in all respects with the
provisions of this Indenture relating to the duties, rights and disabilities of
such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee for the Debt
Securities of any series all sums held in trust by the Company or such Paying
Agent, such sums to be held by such Trustee upon the same trusts as those upon
which such sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to such Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee for the Debt Securities of any
series or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of (and premium, if any) and interest, if any, on any
Debt Security of any particular series and remaining unclaimed for two years
after such principal (and premium, if any) and interest, if any, has become due
and payable shall, unless otherwise required by mandatory provisions of
applicable escheat, abandoned or unclaimed property law, be paid to the Company
on Company Request, or (if then held by the Company) shall be discharged from
such trusts; and the Holder of such Debt Security shall, thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of such Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that such Trustee or such Paying Agent, before being
required to make any such repayment may mail written notice to each such Holder
of such Debt Security in the manner set forth in Section 1.5, or may, in its
discretion, in the name and at the expense of the Company, cause to be published
at least once in a newspaper published in the English language customarily on
each Business Day and of general circulation in the Borough of Manhattan, the
City of New York, notice, that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such mailing or publication, any unclaimed balance of such money then remaining
will, unless otherwise required by mandatory provisions of applicable escheat,
abandoned or unclaimed property law, be repaid to the Company.
SECTION 10.4 Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon it or upon its income, profits or
property, and (2) all lawful claims for labor, materials and supplies which, if
unpaid, might by law become a lien upon its property; provided, however, that
the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
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SECTION 10.5 Maintenance of Properties.
The Company shall cause all its properties used or useful in the
conduct of its business to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section shall
prevent the Company from discontinuing the operation and maintenance of any of
its properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business and not disadvantageous in any material
respect to the Holders.
SECTION 10.6 Corporate Existence.
Subject to Article 8, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders; and
provided, further, however, that the foregoing shall not prohibit a sale,
transfer or conveyance of a Subsidiary or any of its assets in compliance with
the terms of this Indenture.
SECTION 10.7 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 10.4 to 10.7, inclusive, or set
forth in any Board Resolution establishing the Debt Securities of a series, if
before or after the time for such compliance the Holders of more than 50% in
principal amount of the Outstanding Debt Securities of each series of Debt
Securities affected by the omission shall, in each case by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee for the Debt Securities of each series with respect to any such
covenant or condition shall remain in full force and effect.
ARTICLE 11.
REDEMPTION OF DEBT SECURITIES
SECTION 11.1 Applicability of this Article.
Redemption of Debt Securities of any series (whether by operation of a
sinking fund or otherwise) as permitted or required by any form of Debt Security
issued pursuant to this Indenture
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shall be made in accordance with such form of Debt Security and this Article;
provided, however, that if any provision of any such form of Debt Security shall
conflict with any provision of this Article, the provision of such form of Debt
Security shall govern.
SECTION 11.2 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Debt Securities of any series
shall be evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company of less than all of the Debt
Securities of any particular series, the Company shall, at least 30 days prior
to the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee for the Debt Securities of such series) notify such
Trustee by Company Request of such Redemption Date and of the principal amount
of Debt Securities of that series to be redeemed and shall deliver to such
Trustee such documentation and records as shall enable such Trustee to authorize
the Debt Security Registrar to select the Debt Securities to be redeemed
pursuant to Section 11.3. In the case of any redemption of Debt Securities of
any series prior to the expiration of any restriction on such redemption
provided in the terms of such Debt Securities or elsewhere in this Indenture,
the Company shall furnish the Trustee for Debt Securities of such series with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 11.3 Selection by Debt Security Registrar of Debt Securities to
Be Redeemed.
If less than all the Debt Securities are to be redeemed, the Company
may select the series to be redeemed, and if less than all the Debt Securities
of any series are to be redeemed, the particular Debt Securities of that series
to be redeemed shall be selected not more than 30 days prior to the Redemption
Date by the Debt Security Registrar for the Debt Securities of such series, from
the Outstanding Debt Securities of that series not previously called for
redemption, by such method as such Debt Security Registrar shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Debt Securities of that
series, or any integral multiple thereof) of the principal amount of Debt
Securities of that series of a denomination larger than the minimum authorized
denomination for Debt Securities of that series pursuant to Section 3.2.
The Debt Security Registrar for the Debt Securities of any series to be
redeemed shall promptly notify the Company in writing of the Debt Securities of
such series selected for redemption and, in the case of any Debt Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Debt Securities shall
relate, in the case of any Debt Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Debt Securities which has
been or is to be redeemed.
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SECTION 11.4 Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
1.6 not later than the thirtieth day and not earlier than the sixtieth day prior
to the Redemption Date, to each Holder of Debt Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Debt Securities of a
particular series are to be redeemed, the identification (and, in the case of
partial redemption, the respective principal amounts) of the particular Debt
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debt Security or portion thereof, and that
interest thereon, if any, shall cease to accrue on and after said date,
(5) the place or places where such Debt Securities, are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Debt Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee for such Debt Securities in the name and at the expense of the
Company.
SECTION 11.5 Deposit of Redemption Price.
Prior to the opening of business on any Redemption Date, the Company
shall deposit with the Trustee for the Debt Securities to be redeemed or with a
Paying Agent for such Debt Securities (or, if the Company is acting as its own
Paying Agent for such Debt Securities, segregate and hold in trust as provided
in Section 10.3) an amount of money (except as otherwise specified pursuant to
Section 3.1 for the Debt Securities of such Series) sufficient to pay the
principal amount of (and premium, if any, thereon), and (except if the
Redemption Date shall be an Interest Payment Date) any accrued interest on, all
the Debt Securities which are to be redeemed on that date.
SECTION 11.6 Debt Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Debt
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified (except as otherwise provided
pursuant to Section 3.1 for the Debt Securities of such series) and
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from and after such date (unless the Company shall default in the payment of the
Redemption Price) such Debt Securities shall cease to bear interest. Upon
surrender of such Debt Security for redemption in accordance with said notice,
such Debt Security or specified portions thereof shall be paid by the Company at
the Redemption Price; provided, however, that unless otherwise specified as
contemplated by Section 3.1, installments of interest on Debt Securities whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Debt Securities, or one or more Predecessor Debt Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 3.7.
If any Debt Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal thereof (and premium, if any,
thereon) shall, until paid, bear interest from the Redemption Date at a rate per
annum equal to the rate borne by the Debt Security (or, in the case of
Discounted Debt Securities, the Debt Security's Yield to Maturity).
SECTION 11.7 Debt Securities Redeemed in Part.
Any Debt Security which is to be redeemed only in part shall be
surrendered at the Place of Payment (with, if the Company or the Trustee for
such Debt Security so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Debt Security Registrar for
such Debt Security duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Company shall execute and such Trustee shall
authenticate and deliver to the Holder of such Debt Security without service
charge, a new Debt Security or Debt Securities, of any authorized denomination
as requested by such Holder, of the same series and having the same terms and
provisions and in an aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Debt Security so surrendered.
ARTICLE 12.
SINKING FUNDS
SECTION 12.1 Applicability of this Article.
Redemption of Debt Securities through operation of a sinking fund as
permitted or required by any form of Debt Security issued pursuant to this
Indenture shall be made in accordance with such form of Debt Security and this
Article; provided, however, that if any provision of any such form of Debt
Security shall conflict with any provision of this Article, the provision of
such form of Debt Security shall govern.
The minimum amount of any sinking fund payment provided for by the
terms of Debt Securities of any particular series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Debt Securities of any particular series is
herein referred to as an "optional sinking fund payment". If provided for by the
terms of Debt Securities of any particular series, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 12.2.
Each sinking fund payment shall be applied to
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the redemption of Debt Securities of any particular series as provided for by
the terms of Debt Securities of that series.
SECTION 12.2 Satisfaction of Sinking Fund Payments With Debt
Securities.
The Company (1) may deliver Outstanding Debt Securities of a series
(other than any previously called for redemption), and (2) may apply as a credit
Debt Securities of a series which have been redeemed either at the election of
the Company pursuant to the terms of such Debt Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Debt Securities, in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Debt Securities of such series required
to be made pursuant to the terms of such Debt Securities as provided for by the
terms of such series; provided, however, that such Debt Securities have not been
previously so credited. Such Debt Securities shall be received and credited for
such purpose by the Trustee for such Debt Securities at the principal amount
thereof and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 12.3 Redemption of Debt Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
particular series of Debt Securities, the Company will deliver to the Trustee
for the Debt Securities of such series an Officers' Certificate specifying the
amount of the next ensuing mandatory sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash (except as otherwise specified pursuant to
Section 3.1 for the Debt Securities of that series) and the portion thereof, if
any, which is to be satisfied by delivering and crediting Debt Securities of
that series pursuant to Section 12.2 and shall state the basis for such credit
and that such Debt Securities have not previously been so credited and will also
deliver to such Trustee any Debt Securities to be so delivered. Such Trustee
shall select the Debt Securities to be redeemed upon such sinking fund payment
date in the manner specified in Section 11.3 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 11.4. Such notice having been duly given, the
redemption of such Debt Securities shall be made upon the terms and in the
manner stated in Sections 11.5, 11.6 and 11.7.
ARTICLE 13.
SUBORDINATION OF SECURITIES
SECTION 13.1 Debt Securities to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Debt Security,
by his acceptance thereof, likewise covenants and agrees, that, to the extent
and in the manner hereinafter set forth in this Article (subject to Article 4),
the payment of the principal of and interest on each and all of the Debt
Securities are hereby expressly made subordinate and subject in right of payment
to the prior payment in full in cash of all Senior Indebtedness.
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This Article 13 shall constitute a continuing offer to all persons who
become holders of, or continue to hold, Senior Indebtedness, and such provisions
are made for the benefit of the holders of Senior Indebtedness and such holders
are made obligees hereunder and any one or more of them may enforce such
provisions. Holders of Senior Indebtedness need not provide reliance on the
subordinated provisions hereof.
SECTION 13.2 Default on Senior Indebtedness.
In the event and during the continuation of any default in the payment
of principal, premium, interest or any other payment due on any Senior
Indebtedness (and any applicable grace period with respect to such default has
ended and such default has not been cured or waived) or in the event that the
maturity of any Senior Indebtedness has been accelerated because of a default,
then, in either case, no payment shall be made by the Company with respect to
the principal (including redemption payments) of, or interest on, the
Securities.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee or any Holder when such payment is prohibited by the
preceding paragraph of this Section 13.2, such payment shall be held in trust
for the benefit of, and shall be paid over or delivered to, the holders of
Senior Indebtedness or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear, but only to the
extent that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee within 90 days of such payment
of the amounts then due and owing on the Senior Indebtedness and only the
amounts specified in such notice to the Trustee shall be paid to the holders of
Senior Indebtedness.
SECTION 13.3 Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding-up or liquidation or reorganization of
the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all principal of, and premium, if any, and
interest due or to become due upon all Senior Indebtedness (including interest
after the commencement of any bankruptcy, insolvency, receivership or other
proceedings at the rate specified in the applicable Senior Indebtedness, whether
or not such interest is an allowable claim in any such proceeding) shall first
be paid in full, or payment thereof provided for in money in accordance with its
terms, before any payment is made on account of the principal or interest on the
Securities; and upon any such dissolution or winding-up or liquidation or
reorganization any payment by the Company, or distribution of substantially all
of the assets of the Company of any kind or character, whether in cash, property
or securities, to which the Holders of the Security or the Trustee would be
entitled, except for the provisions of this Article 13, shall be paid by the
Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or
other Person making such payment or distribution, or by the Holders of the
Securities or by the Trustee under this Indenture if received by them or it,
directly to the holders of Senior Indebtedness (pro rata to such holders on the
basis of the respective amounts of Senior Indebtedness held by such holders, as
calculated by the Company) or their representative
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or representatives, or to the trustee or trustees under any indenture pursuant
to which any instruments evidencing any Senior Indebtedness may have been
issued, as their respective interests may appear, to the extent necessary to pay
all Senior Indebtedness in full (including interest after the commencement of
any bankruptcy, insolvency, receivership or other proceedings at the rate
specified in the applicable Senior Indebtedness, whether or not such interest is
an allowable claim in any such proceeding) or to provide for such payment in
money in accordance with its terms, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Indebtedness, before any
payment or distribution is made to the Holders of Securities or to the Trustee.
In the event that the Securities are declared due and payable before the
Maturity, then all amounts due on all Senior Indebtedness shall have been paid
in full (including interest after the commencement of any bankruptcy,
insolvency, receivership or other proceeding at the rate specified in the
applicable Senior Indebtedness, whether or not such interest is an allowable
claim in any such proceeding) before holders of the Securities are entitled to
receive or retain any payment.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee or the Holders of the Securities before all Senior Indebtedness is paid
in full (including interest after the commencement of any bankruptcy,
insolvency, receivership or other proceedings at the rate specified in the
applicable Senior Indebtedness, whether or not such interest is an allowable
claim in any such proceeding), or provision is made for such payment in money in
accordance with its terms, such payment or distribution shall be held in trust
for the benefit of and shall be paid over or delivered to the holders of Senior
Indebtedness or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any
Senior Indebtedness may have been issued, as their respective interests may
appear, as calculated by the Company, for application to the payment of all
Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior
Indebtedness in full in money in accordance with its terms, after giving effect
to any concurrent payment or distribution to or for the holders of such Senior
Indebtedness.
Any holder of Senior Indebtedness may file any proof of claim or
similar instrument on behalf of the Trustee and the Holders if such instrument
has not been filed by the date which is 30 days prior to the date specified for
filing thereof.
For purposes of this Article 13, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article 13 with respect
to the Securities to the payment of all Senior Indebtedness that may, at the
time, be outstanding, provided, however, that (i) the Senior Indebtedness is
assumed by the new corporation, if any, resulting from any such reorganization
or readjustment, and (ii) the rights of the holders of the Senior Indebtedness
are not, without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions
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provided for in Article 8 hereof shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section 8 if such other
corporation shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions stated in Article 8 hereof. Nothing in
Section 13.2 or in this Section 13.3 shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 6.7.
SECTION 13.4 Subrogation.
Subject to the payment in full of all Senior Indebtedness, the rights
of the Holders of the Securities shall be subrogated to the rights of the
holders of Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to the Senior Indebtedness
until the principal of (and premium, if any) and interest on the Securities
shall be paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of any cash, property or
securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article 13, and no payment over
pursuant to the provisions of this Article 13, to or for the benefit of the
holders of Senior Indebtedness by Holders of the Securities or the Trustee,
shall, as between the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be a payment by
the Company to or on account of the Senior Indebtedness. It is understood that
the provisions of this Article 13 are and are intended solely for the purposes
of defining the relative rights of the Holders of the Securities, on the one
hand, and the holders of the Senior Indebtedness, on the other hand.
Nothing contained in this Article 13 or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of (and premium, if any)
and interest on the Securities as and when the same shall become due and payable
in accordance with their terms, or is intended to or shall affect the relative
rights of the Holders of the Securities and creditors of the Company other than
the holders of the Senior Indebtedness, nor shall anything herein or therein
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article 13 of the holders of Senior
Indebtedness in respect of cash, property or securities of the Company received
upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article 13, the Trustee, subject to the provisions of Section 6.1, and
the Holders of the Securities, shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which such dissolution,
winding-up, liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidation trustee, agent
or other Person making such payment or distribution, delivered to the Trustee or
to the Holders of the Securities, for the purposes of ascertaining the Persons
entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article 13.
<PAGE> 68
- 63 -
SECTION 13.5 Trustee to Effectuate Subordination.
Each Holder of a Security by acceptance thereof authorizes and directs
the Trustee on such Holder's behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article 13 and
appoints the Trustee such Holder's attorney-in-fact for any and all such
purposes.
SECTION 13.6 Notice by the Company.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company that would prohibit the making
of any payment of monies to or by the Trustee in respect of the Securities
pursuant to the provisions of this Article 13. Notwithstanding the provisions of
this Article 13 or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts that would prohibit the
making of any payment of monies to or by the Trustee in respect of the
Securities pursuant to the provisions of this Article 13, unless and until a
Responsible Officer of the Trustee shall have received written notice thereof at
the Corporate Trust Office of the Trustee from the Company or a holder or
holders of Senior Indebtedness or from any trustee therefor; and before the
receipt of any such written notice, the Trustee, subject to the provisions of
Section 6.1, shall be entitled, in all respects, to assume that no such facts
exist; provided, however, that if the Trustee shall not have received the notice
provided in this Section 13.6 at least two Business Days prior to the date upon
which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of (or premium, if
any) or interest on any Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purposes for which they were
received, and shall not be affected by any notice to the contrary that may be
received by it within two Business Days prior to such date.
The Trustee, subject to the provisions of Section 6.1, shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee on
behalf of such holder) to establish that such notice has been given by a holder
of Senior Indebtedness or a trustee on behalf of any such holder or holders. In
the event that the Trustee determines, in good faith, that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article 13, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article 13, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 13.7 Rights of the Trustee; Holders of Senior Indebtedness.
The Trustee, in its individual capacity, shall be entitled to all the
rights set forth in this Article 13 in respect of any Senior Indebtedness at any
time held by it, to the same extent as any
<PAGE> 69
- 64 -
other holder of Senior Indebtedness, and nothing in this Indenture shall deprive
the Trustee of any of its rights as such holder. Nothing in this Article 13
shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 6.7.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article 13, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness and, subject to the
provisions of Section 6.1, the Trustee shall not be liable to any holder of
Senior Indebtedness if it shall pay over or deliver to holders of Securities,
the Company or any other Person money or assets to which any holder of Senior
Indebtedness shall be entitled by virtue of this Article 13 or otherwise.
SECTION 13.8 Subordination May Not be Impaired.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall, at any time, in any way, be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by an
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such holder may have or
otherwise be charged with.
Without, in any way, limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Senior Indebtedness or otherwise amend or supplement in any manner Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the collection
of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights
against the Company and any other Person.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
<PAGE> 70
- 65 -
IN WITNESS WHEREOF, the parties hereto have caused this Indenture dated
as of ___________, 1997 to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the ____ day of ________,
1997.
AAG HOLDING COMPANY, INC.
[SEAL]
By:___________________________
Title:________________________
[SEAL] AMERICAN ANNUITY GROUP, INC.
By:___________________________
Title:________________________
[SEAL] STAR BANK, N.A., Trustee
By:___________________________
Title:________________________
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of American Annuity
Group, Inc. for the registration of $150,000,000 of its Debt Securities and to
the incorporation by reference therein of our report dated February 28, 1997,
with respect to the consolidated financial statements and schedules of American
Annuity Group, Inc. included in its Annual Report (Form 10-K) for the year ended
December 31, 1996, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Cincinnati, Ohio
November 25, 1997
<PAGE> 1
EXHIBIT 23.2
CONSENT OF KEATING, MUETHING & KLEKAMP, P.L.L.
We hereby consent to the reference to our firm under the caption "Legal Matters"
in the Registration Statement (Form S-3) and related Prospectus of American
Annuity Group, Inc. for the registration of $150,000,000 of its Debt Securities.
In providing this consent, we do not thereby admit that we are within the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended, or the rules and regulations of the Commission
promulgated thereunder.
KEATING, MUETHING & KLEKAMP, P.L.L.
Cincinnati, Ohio
November 25, 1997
<PAGE> 1
EXHIBIT 25.1
Securities Act of 1933 File No.___________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
__________________________________________________
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
PURSUANT TO SECTION 305(b)(2) / X /
__________________________________________________
STAR BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
A National Banking Association 31-0841368
(IRS Employer Identification No.)
425 Walnut Street
Cincinnati, Ohio 45202
(Address of Principal Executive Offices) (Zip Code)
__________________________________________________
Robert T. Jones
Senior Trust Officer
Star Bank, National Association
425 Walnut Street
Cincinnati, Ohio 45202
(513) 632-4427
(Name, address, and telephone number of agent for services)
AAG HOLDING COMPANY, INC.
(Exact name of obligor as specified in its charter)
Ohio 31-1475936
(State of Incorporation) (IRS Employer Identification No.)
One East Fourth Street, Cincinnati, OH 45202
(Address of principal executive offices) (Zip Code)
Senior Debt Securities
(Title of the Indenture securities)
<PAGE> 2
1. General Information. Furnish the following information as Trustee --
(a) Name and address of each examining or supervising authority to
which it is subject.
COMPTROLLER OF THE CURRENCY, WASHINGTON, D.C.
FEDERAL RESERVE BANK OF CLEVELAND, OHIO
FEDERAL DEPOSIT INSURANCE CORPORATION, WASHINGTON, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
THE TRUSTEE IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
2. Affiliations with obligor. If the obligor is an affiliate of the
trustee, describe each such affiliation.
THE OBLIGOR IS NOT AN AFFILIATE OF THE TRUSTEE (INCLUDING
ITS PARENT AND ANY AFFILIATES).
3. Voting Securities of the trustee. Furnish the following information
as to each class of voting securities of the trustee (and its
parent). As of _____________ (insert date within 31 days)
Col A. Col B
(Title of Class) (Amount Outstanding)
4. Trusteeships under other Indentures. If the trustee is a trustee
under another Indenture under which any other securities, or
certificates of interest or participation in any other securities,
of the obligor are outstanding, furnish the following information:
(a) Title of the securities outstanding under each such other
indenture.
(b) A brief statement of the facts relied upon as a basis for the
claim that no conflicting interest within the meaning of
Section 310(b) (1) of the Act arises as a result of the
trusteeship under any such other indenture, including a
statement as to how the indenture securities will rank as
compared with the securities issued under such other
indenture.
5. Interlocking directorates and similar relationships with the obligor
or underwriters. If the trustee (including its parent and any other
affiliates) or any of the directors or executive officers of the
trustee is a director, officer, partner, employee, appointee, or
representative of the obligor or of any underwriter for the obligor,
identify each such person having any such connection and state the
nature of each such connection.
2
<PAGE> 3
6. Voting securities of the trustee (including its parent and any affiliate)
owned by the obligor or its officials. Furnish the following information
as to the voting securities of the trustee (including its parent and any
affiliates) owned beneficially by the obligor and each director, partner
and executive officer of the obligor:
As of _______________________ (insert date within 31 days)
<TABLE>
<CAPTION>
Col. A. Col. B. Col. C Col. D
<S> <C> <C> <C>
Percentage of
Voting Securities
Represented by
Amount Owned Amount Given
Name of Owner Title of Class Beneficially in Col. C
</TABLE>
7. Voting securities of the trustee (including its parent and any affiliates)
owned by underwriters or their officials. Furnish the following
information as to the voting securities of the trustee (including its
parent and any affiliates) owned beneficially by each underwriter for the
obligor and each director, partner, and executive officer of each such
underwriter:
As of ___________________(insert date within 31 days)
<TABLE>
<CAPTION>
Col. A. Col B. Col. C Col. D
<S> <C> <C> <C>
Percentage of
Voting Securities
Represented by
Amount Owned Amount Given
Name of Owner Title of Class Beneficially in Col. C
</TABLE>
8. Securities of the obligor owned or held by the trustee (including its
parent and any affiliates). Furnish the following information as to
securities of the obligor owned beneficially or held as collateral
security for obligations default by the trustee (including its parent and
any affiliates):
As of ___________________(insert date within 31 days)
<TABLE>
<CAPTION>
Col. A. Col B. Col. C Col. D
<S> <C> <C> <C>
Amount Owned
Whether the Beneficially or
Securities Are Held as Collateral Percent of
Voting or Security for Class Represented
Nonvoting obligations in by Amount Given
Title of Class Securities Default in Col. C
</TABLE>
3
<PAGE> 4
9. Securities of underwriters owned or held by the trustee (including its
parent and any affiliates). If the trustee (including its parent and any
affiliates) owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the obligor,
furnish the following information as to each class of securities of such
underwriter any of which are so owned or held by the trustee:
<TABLE>
<CAPTION>
Col. A Col. B Col. C Col. D
<S> <C> <C> <C>
Amount Owned
Beneficially or
Held as Collateral Percent of
Security for Class Represented
Title of Issuer Obligations in by Amount
and Title of Amount Default by Given in
Class Outstanding Trustee Col. C
</TABLE>
10. Ownership or holdings by the trustee (including its parent and any
affiliates) of voting securities of certain affiliates or security holders
of the obligor. If the trustee (including its parent and any affiliates)
owns beneficially or holds as collateral security for obligations in
default voting securities of a person who, to the knowledge of the trustee
(1) owns 10% or more of the voting securities of the obligor or (2) is an
affiliate, other than a subsidiary, of the obligor, furnish the following
information as to the voting securities of such person:
As of _______________________(insert date within 31 days)
<TABLE>
<CAPTION>
Col. A Col. B Col. C Col. D
<S> <C> <C> <C>
Amount Owned
Beneficially or
Held as Collateral Percent of
Security for Class Represented
Title of Issuer Obligations in by Amount
and Title of Amount Default by Given in
Class Outstanding Trustee Col. C
</TABLE>
11. Ownership or holdings by the trustee (including its parent and any
affiliates) of any securities of a person owning 50 percent or more of the
voting securities of the obligor. If the trustee (including its parent and
any affiliates) owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the knowledge of
the trustee, owns 50 percent or more of the voting securities of the
obligor, furnish the following information as to each class of securities
of such person any of which are so owned or held by the trustee (including
its parent and affiliates):
As of ______________________(insert date within 31 days)
4
<PAGE> 5
<TABLE>
<CAPTION>
Col. A Col. B Col. C Col. D
<S> <C> <C> <C>
Amount Owned
Beneficially or
Held as Collateral Percent of
Security for Class Represented
Title of Issuer Obligations in by Amount
and Title of Amount Default by Given in
Class Outstanding Trustee Col. C
</TABLE>
12. Indebtedness of the Obligor to the Trustee. Except as noted in the
instructions, if the obligor is indebted to the trustee, furnish the
following information:
As of ____________________(insert date with 31 days)
Col. A Col. B Col. C
Amount
Nature of Indebtedness Outstanding Due Date
13. Defaults by the Obligor.
a) State whether there is or has been a default with respect
to the securities under this indenture. Explain the nature
of any such default.
b) If the Trustee is a trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the obligor are
outstanding, or is trustee for more than one outstanding
series or securities under the indenture, state whether
there has been a default under any such indenture or
series, identify the indenture or series affected, and
explain the nature of any such default.
As of ____________ (insert date within 31 days)
<TABLE>
<CAPTION>
Col. A Col. B Col. C Col. D
<S> <C> <C> <C>
Amount Owned
Beneficially or
Held as Collateral Percent of
Security for Class Represented
Title of Issuer Obligations in by Amount
and Title of Amount Default by Given in
Class Outstanding Trustee Col. C
</TABLE>
14. Affiliations with the Underwriters. If any underwriter is an affiliate of
the
5
<PAGE> 6
trustee (including its parent and any affiliates), described each such
affiliation.
15. Foreign Trustee. Identify the order or rule pursuant to which the foreign
trustee is authorized to act as sole trustee under indentures qualified or
to be qualified under the Act.
16. List of Exhibits. List below all exhibits filed as part of this statement
of eligibility.
1. A copy of the Articles of Association of Star Bank, National
Association, as now in effect.
2. A copy of the certificate of authority of The First National Bank of
Cincinnati (now Star Bank, National Association) to commence
business dated September 1, 1922.
3. A copy of the authorization of The First National Bank of Cincinnati
(now Star Bank, National Association) to exercise corporate trust
powers.
4. A copy of existing By-Laws to Star Bank, National Association,
Cincinnati (now Star Bank, National Association)
5. The consent of the Trustee required by section 321(b) of the Trust
Indenture Act of 1939.
6. A copy of the latest report of condition of Star Bank, National
Association, published pursuant to law or the requirements of its
supervising or examining authority.
6
<PAGE> 7
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Star Bank, National Association, a national banking association
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Cincinnati and State
of Ohio on the 20th day of November, 1997.
STAR BANK, NATIONAL ASSOCIATION
By: /S/ Robert T. Jones
___________________________________
Robert T. Jones
Senior Trust Officer
7
<PAGE> 8
EXHIBIT 1
Comptroller of the Currency
Administrator of National Banks
Washington, D.C. 20219
CERTIFICATE
I, Eugene A. Ludwig, Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et.
seq., as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody
and control of all records pertaining to the chartering, regulation and
supervision of all National Banking Associations.
2. "Star Bank, National Association", Cincinnati, Ohio, (Charter No. 24), is a
National Banking Association formed under the laws of the United States and is
authorized thereunder to transact the business of banking on the date of this
Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my name and
caused my seal of office to be affixed to these
(SEAL) presents at the Treasury Department, in the City of
Washington and District of Columbia, this 18th day
of December, 1996.
(Signed)Eugene A. Ludwig
Comptroller of the Currency
8
<PAGE> 9
Comptroller of the Currency
Administrator of National Banks
Washington, D.C. 20219
CERTIFICATE
I, Eugene A. Ludwig, Comptroller of the Currency hereby certify that the
document hereto attached is a true and complete copy, as recorded in this Office
of the currently effective Articles of Association for "Star Bank, National
Association", Cincinnati, Ohio, (Charter No. 24).
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of office to
be affixed to these presents at the Treasury
Department, in the City of Washington and District
(SEAL)
of Columbia, this 18th day of December, 1996.
(Signed)Eugene A. Ludwig
Comptroller of the Currency
9
<PAGE> 10
STAR BANK, NATIONAL ASSOCIATION
CHARTER NO. 24
ARTICLES OF ASSOCIATION
FIRST: The title of this Association shall be "Star Bank, National Association".
SECOND: The main office of the Association shall be in the city of Cincinnati,
County of Hamilton, State of Ohio. The general business of the Association shall
be conducted at its main office and its branches.
THIRD: The Board of Directors of this Association shall consist of not less than
five (5) nor more than twenty-five (25) shareholders, the exact number of
Directors within such minimum and maximum limits to be fixed and determined from
time to time by resolution of a majority of the full Board of Directors or by
resolution of the shareholders at any annual or special meeting thereof. Unless
otherwise provided by the laws of the United States, any vacancy in the Board of
Directors for any reason, including an increase in the number thereof, may be
filled by action of the Board of Directors.
FOURTH: The annual meeting of the shareholders for the election of Directors and
the transaction of whatever other business may be brought before said meeting
shall be held at the main office or such other place as the Board of Directors
may designate, on the day of each year specified thereof by the Bylaws, but if
no election is held on that day, it may be held on any subsequent day according
to the provisions of law; and all elections shall be held according to the
provisions of law; and all elections shall be held according to such lawful
regulations as may be prescribed by the Board of Directors.
FIFTH: The authorized amount of capital stock of this Association shall be
3,640,000 shares of common stock of the par value of five dollars ($5.00) each,
but said capital stock may be increased or decreased from time to time, in
accordance with the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any pre-emptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time determine and at such
price as the Board of Directors may from time to time fix.
The Association, at any time and from time to time, may authorize and issue debt
obligations, whether or not subordinated, without the approval of the
shareholders.
SIXTH: The Board of Directors shall appoint one of its members President of this
Association, who shall be Chairman of the Board, unless the Board appoints
another Director to be the
10
<PAGE> 11
Chairman. The Board of Directors shall have the power to appoint one or more
Vice Presidents; and to appoint a Cashier and such other officers and employees
as may be required to transact the business of this Association. The Board of
Directors shall have the power to define the duties of the officers and
employees of the Association; to fix the salaries to be paid to them; to dismiss
them; to require bonds from them and to fix the penalty thereof; to regulate the
manner in which any increase of the capital of the Association shall be made; to
manage and administer the business and affairs of the Association; to make all
bylaws that it may be lawful for them to make and generally to do and perform
all acts that it may be legal for a Board of Directors to do and perform.
SEVENTH: The Board of Directors, without need for approval of shareholders,
shall have the power to change the location of the main office of this
Association to any other place within the limits of Cincinnati, Ohio, without
the approval of the shareholders, and shall have the power to establish or
change the location of any branch or branches of the Association to any other
location, without the approval of the shareholders, but subject to the approval
of the Comptroller of the Currency.
EIGHTH: The corporate existence of this Association shall continue until
terminated in accordance with the laws of the United States.
NINTH: The Board of Directors of this Association, the Chairman of the Board,
the President, or any three of more shareholders owning, in the aggregate, not
less than twenty-five percent of the stock of this Association, may call a
special meeting of shareholders at any time. Unless otherwise provided by the
laws of the United States, a notice of the time, place, and purpose of every
annual and special meeting of the shareholders shall be given by first-class
mail, postage prepaid, mailed at least ten days prior to the date of such
meeting to each shareholder of record at his address as shown upon the books of
this Association.
TENTH: Any person, his heirs, executors, or administrators, may be indemnified
or reimbursed by the Association for reasonable expenses actually incurred in
connection with any action, suit, or proceeding, civil or criminal, to which he
or they shall be made a party by reason of his being or having been a director,
officer, or employee of the Association or of any firm, corporation, or
organization which he served in any such capacity at the request of the
Association. Provided, however, that no person shall be so indemnified or
reimbursed in relation to any matter in such action, suit, or proceeding as to
which he shall finally be adjudged to have been guilty of or liable for gross
negligence, willful misconduct or criminal acts in the performance of his duties
to the Association. And, provided further, that no person shall be so
indemnified or reimbursed in relation to any matter in such action, suit, or
proceeding which has been made the subject of a compromise settlement except
with the approval of a court of competent jurisdiction, or the holders of record
of a majority of the outstanding shares of the Association, or the Board of
Directors, acting by vote of Directors not parties to the same or substantially
the same action, suit or proceeding, constituting a majority of the whole number
of Directors. And, provided further, that no director, officer or employee shall
be so indemnified or reimbursed for expenses, penalties or other payments
incurred in an administrative proceeding or action instituted by an appropriate
bank regulatory agency where said proceeding or action results in a final order
11
<PAGE> 12
assessing civil money penalties or requiring affirmative action by an individual
or individuals in the form of payments to this Association. The foregoing right
of indemnification shall not be exclusive of other rights to which such person,
his heirs, executors, or administrators, may be entitled as a matter of law. The
Association may, upon the affirmative vote of a majority of its Board of
Directors, purchase insurance for the purpose of indemnifying its directors,
officers and other employees to the extent that such indemnification is allowed
in the preceding paragraph. Such insurance may, but need not, be for the benefit
of all directors, officers, or employees.
ELEVENTH: These Articles of Association may be amended at any regular or special
meeting of the shareholders by the affirmative vote of the holders of a majority
of the stock of this Association, unless the vote of the holders of a greater
amount of stock is required by law and in that case by the vote of the holders
of such greater amount.
12
<PAGE> 13
EXHIBIT 2
COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE BUSINESS:
NO. 24
E Pluribus Unum
TREASURY DEPARTMENT
Office of Comptroller of the Currency
Washington, D.C., September 1, 1992
WHEREAS, the Act of Congress of the United States, entitled, "An Act to
amend section 5136, Revised Statutes of the United States, relating to corporate
powers of associations, so as to provide succession thereof for a period of
ninety-nine years or until dissolved, and to apply said section as so amended to
all national banking association", approved by the President on July 1, 1922,
provided that all national banking associations organized and operating under
any law of the United States on July 1, 1992 should have succession until
ninety-nine years from that date, unless such association should be sooner
dissolved by the act of its shareholders owning two-thirds of its stock, or
unless its franchise should become forfeited by reason of violation of law, or
unless it should be terminated by an Act of Congress hereinafter enacted;
NOW THEREFORE, I, D. R. Crissinger Comptroller of the Currency, do hereby
certify that The First National Bank of Cincinnati and State of Ohio, was
organized and operating under the laws of the United States on July 1, 1922, and
that its corporate existence was extended for the period of ninety-nine years
from that date in accordance with and subject to the condition in the Act of
Congress hereinbefore recited.
(SEAL) IN TESTIMONY WHEREOF, witness my hand
and seal of office this first day of September,
1922
(Signed) D. R. Crissinger
___________________________________
Comptroller of the Currency
13
<PAGE> 14
EXHIBIT 3
THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE TRUST POWERS:
FEDERAL RESERVE BOARD
Washington, D.C.
October 9, 1919
Pursuant to authority vested in the Federal Reserve Board by the Act of
Congress approved December 23, 1913, known as the Federal Reserve Act, as
amended by the Act of September 26, 1918, the
FIRST NATIONAL BANK OF CINCINNATI
has been granted the right to act, when not in contravention of State or local
law, as TRUSTEE, EXECUTOR, ADMINISTRATOR, REGISTRAR OF STOCKS AND BONDS,
GUARDIAN OF ESTATES, ASSIGNEE, RECEIVER OR IN ANY OTHER FIDUCIARY CAPACITY IN
WHICH STATE BANKS, TRUST COMPANIES OR OTHER CORPORATIONS WHICH COME INTO
COMPETITION WITH NATIONAL BANKS ARE PERMITTED TO ACT UNDER THE LAWS OF THE STATE
OF OHIO. The exercise of such rights shall be subject to regulations prescribed
by the Federal Reserve Board.
Federal Reserve Board,
By W. P. G. Harding
Governor.
ATTEST:
W. T. Chapman
Secretary.
STATE OF OHIO
DEPARTMENT OF BANKS AND BANKING
Certificate of Authority No. 17
NATIONAL BANKS
I, Philip C. Berg, Superintendent of Banks, do hereby certify that the
First National Bank of Cincinnati, Hamilton County, Ohio has complied with all
the requirements provided by law and is authorized to transact the business of a
trust company and to perform all the functions granted to such companies by the
laws of this state.
Given under my hand and official Seal at Columbus,
Ohio, this twenty-fifth day of November, A.D. 1919
Philip C. Berg,
Superintendent of Banks.
(SEAL)
<PAGE> 15
EXHIBIT 4
BY-LAWS
STAR BANK, N.A., CINCINNATI
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING
The annual meeting of shareholders shall be held in the main banking house of
the Association at 11:00 a.m. on the second Tuesday in February of each year.
Notice of such meeting shall be mailed to shareholders not less than ten (10)
nor more than sixty (60) days prior to the meeting date.
SECTION 2. SPECIAL MEETINGS
Special meetings of shareholders may be called and held at such times and upon
such notice as is specified in the Articles of Association.
SECTION 3. QUORUM
A majority of the outstanding capital stock represented in person or by proxy
shall constitute a quorum of any meeting of the shareholders, unless otherwise
provided by law, but less than a quorum may adjourn any meeting, from time to
time, and the meeting amy be held as adjourned without further notice.
SECTION 4. INSPECTORS
The Board of Directors may, and in the event of its failure so to do, the
Chairman of the Board shall appoint Inspectors of Election who shall determine
the presence of a quorum, the validity of proxies, and the results of all
elections and all other matters voted upon by shareholders at all annual and
special meetings of shareholders.
SECTION 5. VOTING
In deciding on questions at meetings of shareholders, except in the election of
directors, each shareholder shall be entitled to one vote for each share of
stock held. A majority of votes cast shall decide each matter submitted to the
shareholders, except where by law a larger vote is required. In all elections of
directors, each shareholder shall have the right to vote the number of shares
owned by him for as many persons as there are directors to be elected, or to
cumulate such shares and give one candidate as many votes as the number of
directors multiplied by the number
15
<PAGE> 16
of his shares equal, or to distribute them on the same principle among as many
candidates as he shall think fit.
ARTICLE II
SECTION 1. TERM OF OFFICE
The directors of this Association shall hold office for one year and until their
successors are duly elected and qualified.
SECTION 2. REGULAR MEETINGS
The organization meeting of the Board of Directors shall be held as soon as
practical following the annual meeting of shareholders at the main banking
house. Other regular meetings of the Board of Directors shall be held without
notice at 11:00 a.m. on the second Tuesday of each month except February, at the
main banking house, or, provided notice is given by telegram, letter, telephone
or in person to every Director, at such time and place as may be designated in
the notice of the meeting. When any regular meeting of the Board falls on a
holiday, the meeting shall be held on the next banking business day, unless the
Board shall designate some other day.
SECTION 3. SPECIAL MEETINGS
Special meetings of the Board of Directors may be called by the Chairman of the
Board of the Association, or at the request of three or more Directors. Notice
of the time, place and purposes of such meetings shall be given by telegram,
letter, telephone or in person to every Director.
SECTION 4. QUORUM
A majority of the entire membership of the Board shall constitute a quorum at
any meeting of the Board.
SECTION 5. NECESSARY VOTE
A majority of those Directors present and voting at any meeting of the Board of
Directors shall decide each matter considered, except where otherwise required
by law or the Articles or By-Laws of this Association.
SECTION 6. COMPENSATION
Directors, excluding full-time employees of the Bank, shall receive such
reasonable compensation as may be fixed from time to time by the Board of
Directors.
SECTION 7. ELECTION-AGE LIMITATION
No person shall be elected or reelected a Director after reaching his seventieth
(70th) birthday, provided that any person who is a Director on December 10,
1985, may continue to be reelected a Director until he reaches his seventy-fifth
(75th) birthday.
16
<PAGE> 17
SECTION 8 RETIREMENT-AGE LIMITATION
Every Director of the Bank shall retire no later than the first month next
following his seventieth (70th) birthday, except for any person who was a
Director on December 10, 1985, who shall retire not later that the first of the
next month following his seventy-fifth (75th) birthday.
SECTION 9 DIRECTORS EMERITUS
The Board shall have the right from time to time to choose as Directors Emeritus
persons who have had prior service as members of the Board and who may receive
such compensation as shall be fixed from time to time by the Board of Directors.
ARTICLE III
OFFICERS
SECTION 1 WHO SHALL CONSTITUTE
The Officers of the Association shall be a Chairman of the Board, a President, a
Secretary, and other officers such as Chairman of the Executive Committee, Vice
Chairman of the Board, Executive Vice Presidents, Senior Vice Presidents, Vice
Presidents, Assistant Secretaries, Trust Officers, Trust Investment Officers,
Trust Real Estate Officers, Assistant Trust Officers, a Controller, Assistant
Controller, an Auditor and Assistant Auditors, as the Board may appoint from
time to time. Any person may hold two offices. The Chairman of the Board, all
Vice Chairmen of the Board and the President shall at all times be members of
the Board of Directors.
SECTION 2 TERM OF OFFICE
All officers shall be elected for and shall hold office for one year and until
their successors are elected and qualified, subject to the right in the Board of
Directors by a majority vote of the entire membership to discharge any officer
at any time.
SECTION 3 CHAIRMAN OF THE BOARD (Amended 12/13/88-see attachment)
The Chairman of the Board shall be the Chief Executive Officer of the
Association and shall have all duties, responsibilities and powers of the Chief
Executive Officer. He shall, when present, preside at all meetings of
shareholders and directors and shall be ex officio a member of all committees of
the Board. He shall name all members of the committees of the Board, subject to
the confirmation thereof by the Board.
In the event that there is a vacancy in the position of President or in the
event of the absence or incapacity of the President, the Chairman may appoint,
or in the event of his failure to do so, the Board of Directors or the Executive
Committee thereof may designate any Vice Chairman of the
17
<PAGE> 18
Board, any Executive Vice President or any Senior Vice President of the
Association temporarily to exercise the powers and perform the duties of the
Chairman as Chief Executive Officer when the Chairman is absent or
incapacitated.
The Board of Directors shall have the power to elect a Chairman of the Executive
Committee. Any such Chairman of the Executive Committee shall participate in the
formation of the policies of the Association and shall have such other duties as
may be assigned to him from time to time by the President or by the Board of
Directors.
SECTION 4 PRESIDENT (amended 12/13/88-see attachment)
The President shall participate in the formation and supervision of the policies
and operations of the Association and shall perform such other duties as may be
assigned to him from time to time by the Board of Directors or by the Chairman
of the Board. In the event that there is a vacancy in the position of the
Chairman of the Board, the President shall be the Chief Executive Officer of the
Association and shall have all the powers and perform all the duties of the
Chairman of the Board, including the same power to name temporarily a Chief
Executive Officer to serve in the absence of the President.
SECTION 5 CHAIRMAN OF THE EXECUTIVE COMMITTEE
The Board of Directors shall have the power to elect a Chairman of the Executive
Committee. Any such Chairman of the Executive Committee shall participate in the
formation of the policies of the Association and shall have such other duties as
may be assigned to him from time to time by the President or by the Board of
Directors.
SECTION 6 VICE CHAIRMEN OF THE BOARD
The Board of Directors shall have the power to elect one or more Vice Chairmen
of the Board of Directors. Any such Vice Chairmen of the Board shall participate
in the formation of the policies of the Association and shall have such other
duties as may be assigned to him from time to time by the Chairman of the Board
or by the Board of Directors.
SECTION 7 OTHER OFFICERS
The Secretary and all other officers appointed by the Board of Directors shall
have such duties as defined by law and as may from time to time be assigned to
them by the Chief Executive Officer or the Board of Directors.
SECTION 8 RETIREMENT
Every officer of the Association shall retire not later than the first of the
month next following his sixty-fifth (65th) birthday. The Board of Directors
may, in its discretion, set the retirement date and terms of retirement of an
officer at a date later than provided above.
18
<PAGE> 19
ARTICLE IV
COMMITTEES
SECTION 1 EXECUTIVE COMMITTEE
There shall be a standing committee of Directors in this Association to be known
as the Executive Committee. This Committee shall meet at 11:00 a.m. on the first
and fourth Tuesday of each month. It shall have all of the powers of the Board
of Directors between meetings of the Board, except as the Board only by law is
authorized to perform or exercise. All actions of the Executive Committee shall
be reported to the Board of Directors. In the event that any member of the
Executive Committee is unable to attend a meeting of that committee, the
Chairman of the Board or the President may, at his discretion, appoint another
Director to attend said meeting of the Executive Committee and for that meeting
to serve as a member of the Executive Committee with full power to act in place
of the absent regular member of the committee.
SECTION 2 COMPENSATION COMMITTEE
There shall be a standing committee of directors of this Association to be known
as the Compensation Committee who shall review the compensation of all Executive
Officers and those officers who participate in the Profit Sharing Pool as well
as fees for directors of the Association. They will recommend specific
compensation arrangements to the Board of Directors for their confirmation.
SECTION 3 COMMITTEE ON AUDIT
There shall be a standing committee of Directors of this Association to be known
as the Committee on Audit, none of whose members shall be active officers of the
Association. This Committee shall make or cause to be made a suitable
examination of the affairs of the Association and the Trust Department at least
once during each period of twelve months. The results of such examination shall
be reported in writing to the Board at the next regular meeting thereafter
stating whether the Association and/or Trust Department is in a sound solvent
condition, whether adequate internal audit controls and procedures are being
maintained and make such recommendations as it deems advisable.
SECTION 4 TRUST COMMITTEE
There shall be a standing committee of Directors of this Association to be known
as the Trust Committee. The Trust Committee shall determine policies of the
Department and review actions of the Trust Investment Committee. All actions of
the Trust Committee shall be reported to the Board of Directors.
SECTION 5 TRUST INVESTMENT COMMITTEE
There shall be a standing committee of this Association to be known as the Trust
Investment Committee composed of officers of the Association. The Trust
Investment Committee or such
19
<PAGE> 20
officers as may be duly designated by the Trust Investment Committee, shall pass
upon the acceptance of all trusts, the closing out or relinquishment of all
trusts and the making, retention, or disposition of all investments of trust
funds in conformity with policies established by the Trust Committee. Actions of
the Trust Investment Committee shall be reported to the Trust Committee.
SECTION 6 PENSION COMMITTEE
There shall be a standing committee of directors or officers of this Association
to be known as the Pension Committee, who shall have the powers and duties as
set forth in the Association's Employees' Pension Plan. A report of the
condition of the pension fund shall be submitted annually to the Board of
Directors.
SECTION 7 OTHER COMMITTEES
The Chairman may appoint, from time to time, other committees for such purposes
and with such powers as he or the Board may direct.
ARTICLE V
SEAL
SECTION 1 IMPRESSION
The following is an impression of the seal of this Association.
August 25, 1988
20
<PAGE> 21
RESOLVED, That Section 3 of Article III of the By-Laws of the Bank shall be
amended to read:
SECTION 3 CHAIRMAN OF THE BOARD
The Chairman of the Board shall have general executive powers and duties and
shall perform such other duties as may be assigned from time to time by the
Board of Directors. In addition, unless the Board of Directors shall have
designated the President to be the Chief Executive Officer, the Chairman of the
Board shall be the Chief Executive Officer and shall have all the powers and
duties of the Chief Executive Officer. He shall, when present, preside at all
meetings of shareholders and directors and shall be ex officio a member of all
committees of the Board. He shall name all members of the committees of the
Board, subject to the confirmation thereof by the Board.
If he is Chief Executive Officer, in the event that there is a vacancy in the
position of President or in the event of the absence or incapacity of the
President, the Chairman may appoint, or in the event of his failure to do so,
the Board of Directors or the Executive Committee thereof may designate, any
Vice Chairman of the Board, any Executive Vice President or any Senior Vice
President of the Association temporarily to exercise the powers and perform the
duties of the Chairman as Chief Executive Officer when the Chairman is absent or
incapacitated.
If the President has been designated Chief Executive Officer by the Board of
Directors, in the event that there is a vacancy in the position of the President
or in the event of the absence or incapacity of the President, the Chairman
shall be the Chief Executive Officer of the Association and shall have all the
powers and perform all the duties of the President, including the powers to name
temporarily a Chief Executive Officer to serve in the absence of the Chairman.
FURTHER RESOLVED, That Section 4 of Article III of the By-Laws of the bank shall
be amended to read:
SECTION 4 PRESIDENT
The President shall have general executive powers and duties and shall perform
such other duties as may be assigned from time to time by the Board of
Directors. In addition, if designated by the Board of Directors, the President
shall be the Chief Executive Officer and shall have all the powers and duties of
the Chief Executive Officer, including the same power to name temporarily a
Chief Executive Officer to serve in the absence of the President if there is a
vacancy in the position of the Chairman or in the event of the absence or
incapacity of the Chairman.
If the Chairman has been designated Chief Executive Officer by the Board of
Directors, in the event that there is a vacancy in the position of the Chairman
of the Board or in the event of the absence or incapacity of the Chairman of the
Board, the President shall be the Chief Executive Officer of the Association and
shall have all the powers and perform all the duties of the Chairman of the
Board, including the same power to name temporarily a Chief Executive Officer to
serve in the absence of the President.
21
<PAGE> 22
EXHIBIT 5
THE CONSENT OF THE TRUSTEE
REQUIRED BY 321 (b) OF THE ACT
Star Bank, National Association, the Trustee executing the statement of
eligibility and qualification to which this Exhibit is attached does hereby
consent that reports of examinations of the undersigned by Federal, State,
Territorial or District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor in accordance with the
provisions of 321 (b) of the Trust Indenture Act of 1939.
STAR BANK, NATIONAL ASSOCIATION
November 26, 1997
_________________ BY: /s/ Robert T. Jones
______________________________________
Date Robert T. Jones
Senior Trust Officer
22
<PAGE> 23
EXHIBIT 6
CONSOLIDATED REPORT OF CONDITION
STAR BANK, NATIONAL ASSOCIATION
FOR SEPTEMBER 30, 1997
All schedules are to be reported in thousands of dollars. Unless
otherwise indicated, report the amount outstanding as of the
last business day of the quarter.
BALANCE SHEET
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
ASSETS
<S> <C>
1. Cash and balances due from depository institutions
a. Noninterest-bearing balances and currency and coin $ 526,425
b. Interest-bearing balances 12,597
2. Securities:
a. Held-to-maturity securities 159,355
b. Available-for-sale securities 1,064,700
3. Federal funds sold and securities purchased under 125,250
agreements to resell in domestic offices
of the bank and of its Edge and Agreements
subsidiaries, and in YBFs
a. Federal funds sold 0
b. Securities purchased under agreements to resell 0
4. Loans and lease financing receivables: 8,118,844
a. Loans and leases, net of unearned income 125,742
b. LESS: Allowance for loan and lease losses
c. LESS: Allocated transfer risk reserve
d. Loans and leases, net of unearned income,allowance, and reserve 7,993,102
5. Trading assets 2,949
6. Premises and fixed assets (including capitalized leases) 139,608
7. Other real estate owned 1,926
8. Investments in unconsolidated subsidiaries and 0
associated companies
9. Customers' liability to this bank on acceptances outstanding 19,149
10. Intangible assets 205,769
11. Other assets 271,621
12. Total assets $10,522,451
</TABLE>
23
<PAGE> 24
CONSOLIDATED REPORT OF CONDITION STAR BANK, NATIONAL ASSOCIATION
FOR SEPTEMBER 30, 1996 CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
LIABILITIES
<S> <C> <C>
13. Deposits:
a. In domestic offices $ 7,851,398
(1) Noninterest-bearing $ 1,523,908
(2) Interest-bearing 6,327,490
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs 136,440
(1) Noninterest-bearing 0
(2) Interest-bearing 136,440
14. Federal funds purchased and securities 1,196,962
sold under agreements to repurchase in
domestic offices of the bank and of its Edge
and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased
b Securities sold under agreements to repurchase
15. a. Demand notes issued to the U.S. Treasury 990
b. Trading liabilities 0
16. Other borrowed money:
a. With original maturity of one year or less 162
b. With original maturity of more than one year 164
17. Mortgage indebtedness and obligations under capitalizated leases
18. Bank's liability on acceptances executed and outstanding 19,149
19. Subordinated notes and debentures 247,597
20. Other liabilities 190,555
21. Total liabilities 9,643,417
22. Limited-life preferred stock and related surplus 0
23. Perpetual preferred stock and related surplus 0
24. Common Stock 18,200
25. Surplus [exclude all surplus related to preferred stock] 266,382
26. a. Undivided profits and capital reserves 582,869
b. Net unrealized holding gains (losses) on 11,583
available-for-sale securities
27. Cumulative foreign currency translation adjustments 0
28. Total equity capital 879,034
29. Total liabilities, limited-life preferred stock, and equity capital $10,522,451
</TABLE>
24
<PAGE> 1
EXHIBIT 25.2
Securities Act of 1933 File No.___________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
__________________________________________________
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
PURSUANT TO SECTION 305(b)(2) / X /
__________________________________________________
STAR BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
A National Banking Association 31-0841368
(IRS Employer Identification No.)
425 Walnut Street
Cincinnati, Ohio 45202
(Address of Principal Executive Offices) (Zip Code)
__________________________________________________
Robert T. Jones
Senior Trust Officer
Star Bank, National Association
425 Walnut Street
Cincinnati, Ohio 45202
(513) 632-4427
(Name, address, and telephone number of agent for services)
AAG HOLDING COMPANY, INC.
(Exact name of obligor as specified in its charter)
Ohio 31-1475936
(State of Incorporation) (IRS Employer Identification No.)
One East Fourth Street, Cincinnati, OH 45202
(Address of principal executive offices) (Zip Code)
Subordinated Debt Securities
(Title of the Indenture securities)
<PAGE> 2
1. General Information. Furnish the following information as Trustee --
(a) Name and address of each examining or supervising authority to
which it is subject.
COMPTROLLER OF THE CURRENCY, WASHINGTON, D.C.
FEDERAL RESERVE BANK OF CLEVELAND, OHIO
FEDERAL DEPOSIT INSURANCE CORPORATION, WASHINGTON, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
THE TRUSTEE IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
2. Affiliations with obligor. If the obligor is an affiliate of the
trustee, describe each such affiliation.
THE OBLIGOR IS NOT AN AFFILIATE OF THE TRUSTEE (INCLUDING
ITS PARENT AND ANY AFFILIATES).
3. Voting Securities of the trustee. Furnish the following information
as to each class of voting securities of the trustee (and its
parent). As of _____________ (insert date within 31 days)
Col A. Col B
(Title of Class) (Amount Outstanding)
4. Trusteeships under other Indentures. If the trustee is a trustee
under another Indenture under which any other securities, or
certificates of interest or participation in any other securities,
of the obligor are outstanding, furnish the following information:
(a) Title of the securities outstanding under each such other
indenture.
(b) A brief statement of the facts relied upon as a basis for the
claim that no conflicting interest within the meaning of
Section 310(b)(1) of the Act arises as a result of the
trusteeship under any such other indenture, including a
statement as to how the indenture securities will rank as
compared with the securities issued under such other
indenture.
5. Interlocking directorates and similar relationships with the obligor or
underwriters. If the trustee (including its parent and any other
affiliates) or any of the directors or executive officers of the
trustee is a director, officer, partner, employee, appointee, or
representative of the obligor or of any underwriter for the obligor,
identify each such person having any such connection and state the
nature of each such connection.
2
<PAGE> 3
6. Voting securities of the trustee (including its parent and any affiliate)
owned by the obligor or its officials. Furnish the following information
as to the voting securities of the trustee (including its parent and any
affiliates) owned beneficially by the obligor and each director, partner
and executive officer of the obligor:
As of _______________________ (insert date within 31 days)
<TABLE>
<CAPTION>
Col. A. Col. B. Col. C Col. D
<S> <C> <C> <C>
Percentage of
Voting Securities
Represented by
Amount Owned Amount Given
Name of Owner Title of Class Beneficially in Col. C
</TABLE>
7. Voting securities of the trustee (including its parent and any affiliates)
owned by underwriters or their officials. Furnish the following
information as to the voting securities of the trustee (including its
parent and any affiliates) owned beneficially by each underwriter for the
obligor and each director, partner, and executive officer of each such
underwriter:
As of ___________________(insert date within 31 days)
<TABLE>
<CAPTION>
Col. A. Col B. Col. C Col. D
<S> <C> <C> <C>
Percentage of
Voting Securities
Represented by
Amount Owned Amount Given
Name of Owner Title of Class Beneficially in Col. C
</TABLE>
8. Securities of the obligor owned or held by the trustee (including its
parent and any affiliates). Furnish the following information as to
securities of the obligor owned beneficially or held as collateral
security for obligations default by the trustee (including its parent and
any affiliates):
As of ___________________(insert date within 31 days)
<TABLE>
<CAPTION>
Col. A. Col B. Col. C Col. D
<S> <C> <C> <C>
Amount Owned
Whether the Beneficially or
Securities Are Held as Collateral Percent of
Voting or Security for Class Represented
Nonvoting Obligations in by Amount Given
Title of Class Securities Default in Col. C
</TABLE>
3
<PAGE> 4
9. Securities of underwriters owned or held by the trustee (including its
parent and any affiliates). If the trustee (including its parent and any
affiliates) owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the obligor,
furnish the following information as to each class of securities of such
underwriter any of which are so owned or held by the trustee:
<TABLE>
<CAPTION>
Col. A Col. B Col. C Col. D
<S> <C> <C> <C>
Amount Owned
Beneficially or
Held as Collateral Percent of
Security for Class Represented
Title of Issuer Obligations in by Amount
and Title of Amount Default by Given in
Class Outstanding Trustee Col. C
</TABLE>
10. Ownership or holdings by the trustee (including its parent and any
affiliates) of voting securities of certain affiliates or security holders
of the obligor. If the trustee (including its parent and any affiliates)
owns beneficially or holds as collateral security for obligations in
default voting securities of a person who, to the knowledge of the trustee
(1) owns 10% or more of the voting securities of the obligor or (2) is an
affiliate, other than a subsidiary, of the obligor, furnish the following
information as to the voting securities of such person:
As of _______________________(insert date within 31 days)
<TABLE>
<CAPTION>
Col. A Col. B Col. C Col. D
<S> <C> <C> <C>
Amount Owned
Beneficially or
Held as Collateral Percent of
Security for Class Represented
Title of Issuer Obligations in by Amount
and Title of Amount Default by Given in
Class Outstanding Trustee Col. C
</TABLE>
11. Ownership or holdings by the trustee (including its parent and any
affiliates) of any securities of a person owning 50 percent or more of the
voting securities of the obligor. If the trustee (including its parent and
any affiliates) owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the knowledge of
the trustee, owns 50 percent or more of the voting securities of the
obligor, furnish the following information as to each class of securities
of such person any of which are so owned or held by the trustee (including
its parent and affiliates):
As of ______________________(insert date within 31 days)
4
<PAGE> 5
<TABLE>
<CAPTION>
Col. A Col. B Col. C Col. D
<S> <C> <C> <C>
Amount Owned
Beneficially or
Held as Collateral Percent of
Security for Class Represented
Title of Issuer Obligations in by Amount
and Title of Amount Default by Given in
Class Outstanding Trustee Col. C
</TABLE>
12. Indebtedness of the Obligor to the Trustee. Except as noted in the
instructions, if the obligor is indebted to the trustee, furnish the
following information:
As of ____________________(insert date with 31 days)
Col. A Col. B Col. C
Amount
Nature of Indebtedness Outstanding Due Date
13. Defaults by the Obligor.
a) State whether there is or has been a default with respect
to the securities under this indenture. Explain the nature
of any such default.
b) If the Trustee is a trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the obligor are
outstanding, or is trustee for more than one outstanding
series or securities under the indenture, state whether
there has been a default under any such indenture or
series, identify the indenture or series affected, and
explain the nature of any such default.
As of ____________ (insert date within 31 days)
<TABLE>
<CAPTION>
Col. A Col. B Col. C Col. D
<S> <C> <C> <C>
Amount Owned
Beneficially or
Held as Collateral Percent of
Security for Class Represented
Title of Issuer Obligations in by Amount
and Title of Amount Default by Given in
Class Outstanding Trustee Col. C
</TABLE>
14. Affiliations with the Underwriters. If any underwriter is an affiliate of
the
5
<PAGE> 6
trustee (including its parent and any affiliates), described each such
affiliation.
15. Foreign Trustee. Identify the order or rule pursuant to which the foreign
trustee is authorized to act as sole trustee under indentures qualified or
to be qualified under the Act.
16. List of Exhibits. List below all exhibits filed as part of this statement
of eligibility.
1. A copy of the Articles of Association of Star Bank, National
Association, as now in effect.
2. A copy of the certificate of authority of The First National Bank of
Cincinnati (now Star Bank, National Association) to commence
business dated September 1, 1922.
3. A copy of the authorization of The First National Bank of Cincinnati
(now Star Bank, National Association) to exercise corporate trust
powers.
4. A copy of existing By-Laws to Star Bank, National Association,
Cincinnati (now Star Bank, National Association)
5. The consent of the Trustee required by section 321(b) of the Trust
Indenture Act of 1939.
6. A copy of the latest report of condition of Star Bank, National
Association, published pursuant to law or the requirements of its
supervising or examining authority.
6
<PAGE> 7
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Star Bank, National Association, a national banking association
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Cincinnati and State
of Ohio on the 20th day of November, 1997.
STAR BANK, NATIONAL ASSOCIATION
By: /S/ Robert T. Jones
___________________________________
Robert T. Jones
Senior Trust Officer
7
<PAGE> 8
EXHIBIT 1
Comptroller of the Currency
Administrator of National Banks
Washington, D.C. 20219
CERTIFICATE
I, Eugene A. Ludwig, Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et.
seq., as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody
and control of all records pertaining to the chartering, regulation and
supervision of all National Banking Associations.
2. "Star Bank, National Association", Cincinnati, Ohio, (Charter No. 24), is a
National Banking Association formed under the laws of the United States and is
authorized thereunder to transact the business of banking on the date of this
Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my name and
caused my seal of office to be affixed to these
(SEAL) presents at the Treasury Department, in the City of
Washington and District of Columbia, this 18th day
of December, 1996.
(Signed)Eugene A. Ludwig
Comptroller of the Currency
8
<PAGE> 9
Comptroller of the Currency
Administrator of National Banks
Washington, D.C. 20219
CERTIFICATE
I, Eugene A. Ludwig, Comptroller of the Currency hereby certify that the
document hereto attached is a true and complete copy, as recorded in this Office
of the currently effective Articles of Association for "Star Bank, National
Association", Cincinnati, Ohio, (Charter No. 24).
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of office to
be affixed to these presents at the Treasury
Department, in the City of Washington and District
(SEAL)
of Columbia, this 18th day of December, 1996.
(Signed)Eugene A. Ludwig
Comptroller of the Currency
9
<PAGE> 10
STAR BANK, NATIONAL ASSOCIATION
CHARTER NO. 24
ARTICLES OF ASSOCIATION
FIRST: The title of this Association shall be "Star Bank, National Association".
SECOND: The main office of the Association shall be in the city of Cincinnati,
County of Hamilton, State of Ohio. The general business of the Association shall
be conducted at its main office and its branches.
THIRD: The Board of Directors of this Association shall consist of not less than
five (5) nor more than twenty-five (25) shareholders, the exact number of
Directors within such minimum and maximum limits to be fixed and determined from
time to time by resolution of a majority of the full Board of Directors or by
resolution of the shareholders at any annual or special meeting thereof. Unless
otherwise provided by the laws of the United States, any vacancy in the Board of
Directors for any reason, including an increase in the number thereof, may be
filled by action of the Board of Directors.
FOURTH: The annual meeting of the shareholders for the election of Directors and
the transaction of whatever other business may be brought before said meeting
shall be held at the main office or such other place as the Board of Directors
may designate, on the day of each year specified thereof by the Bylaws, but of
no election is held on that day, it may be held on any subsequent day according
to the provisions of law; and all elections shall be held according to the
provisions of law; and all elections shall be held according to such lawful
regulations as may be prescribed by the Board of Directors.
FIFTH: The authorized amount of capital stock of this Association shall be
3,640,000 shares of common stock of the par value of five dollars ($5.00) each,
but said capital stack may be increased or decreased from time to time, in
accordance with the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any pre-emptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time determine and at such
price as the Board of Directors may from time to time fix.
The Association, at any time and from time to time, may authorize and issue debt
obligations, whether or not subordinated, without the approval of the
shareholders.
SIXTH: The Board of Directors shall appoint one of its members President of this
Association, who shall be Chairman of the Board, unless the Board appoints
another Director to be the
10
<PAGE> 11
Chairman. The Board of Directors shall have the power to appoint one or more
Vice Presidents; and to appoint a Cashier and such other officers and employees
as may be required to transact the business of this Association. The Board of
Directors shall have the power to define the duties of the officers and
employees of the Association; to fix the salaries to be paid to them; to dismiss
them; to require bonds from them and to fix the penalty thereof; to regulate the
manner in which any increase of the capital of the Association shall be made; to
manage and administer the business and affairs of the Association; to make all
bylaws that it may be lawful for them to make and generally to do and perform
all acts that it may be legal for a Board of Directors to do and perform.
SEVENTH: The Board of Directors, without need for approval of shareholders,
shall have the power to change the location of the main office of this
Association to any other place within the limits of Cincinnati, Ohio, without
the approval of the shareholders, and shall have the power to establish or
change the location of any branch or branches of the Association to any other
location, without the approval of the shareholders, but subject to the approval
of the Comptroller of the Currency.
EIGHTH: The corporate existence of this Association shall continue until
terminated in accordance with the laws of the United States.
NINTH: The Board of Directors of this Association, the Chairman of the Board,
the President, or any three of more shareholders owning, in the aggregate, not
less than twenty-five percent of the stock of this Association, may call a
special meeting of shareholders at any time. Unless otherwise provided by the
laws of the United States, a notice of the time, place, and purpose of every
annual and special meeting of the shareholders shall be given by first-class
mail, postage prepaid, mailed at least ten days prior to the date of such
meeting to each shareholder of record at his address as shown upon the books of
this Association.
TENTH: Any person, his heirs, executors, or administrators, may be indemnified
or reimbursed by the Association for reasonable expenses actually incurred in
connection with any action, suit, or proceeding, civil or criminal, to which he
or they shall be made a party by reason of his being or having been a director,
officer, or employee of the Association or of any firm, corporation, or
organization which he served in any such capacity at the request of the
Association. Provided, however, that no person shall be so indemnified or
reimbursed in relation to any matter in such action, suit, or proceeding as to
which he shall finally be adjudged to have been guilty of or liable for gross
negligence, willful misconduct or criminal acts in the performance of his duties
to the Association. And, provided further, that no person shall be so
indemnified or reimbursed in relation to any matter in such action, suit, or
proceeding which has been made the subject of a compromise settlement except
with the approval of a court of competent jurisdiction, or the holders of record
of a majority of the outstanding shares of the Association, or the Board of
Directors, acting by vote of Directors not parties to the same or substantially
the same action, suit or proceeding, constituting a majority of the whole number
of Directors. And, provided further, that no director, officer or employee shall
be so indemnified or reimbursed for expenses, penalties or other payments
incurred in an administrative proceeding or action instituted by an appropriate
bank regulatory agency where said proceeding or action results in a final order
11
<PAGE> 12
assessing civil money penalties or requiring affirmative action by an individual
or individuals in the form of payments to this Association. The foregoing right
of indemnification shall not be exclusive of other rights to which such person,
his heirs, executors, or administrators, may be entitled as a matter of law. The
Association may, upon the affirmative vote of a majority of its Board of
Directors, purchase insurance for the purpose of indemnifying its directors,
officers and other employees to the extent that such indemnification is allowed
in the preceding paragraph. Such insurance may, but need not, be for the benefit
of all directors, officers, or employees.
ELEVENTH: These Articles of Association may be amended at any regular or special
meeting of the shareholders by the affirmative vote of the holders of a majority
of the stock of this Association, unless the vote of the holders of a greater
amount of stock is required by law and in that case by the vote of the holders
of such greater amount.
12
<PAGE> 13
EXHIBIT 2
COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE BUSINESS:
NO. 24
E Pluribus Unum
TREASURY DEPARTMENT
Office of Comptroller of the Currency
Washington, D.C., September 1, 1992
WHEREAS, the Act of Congress of the United States, entitled, "An Act to
amend section 5136, Revised Statutes of the United States, relating to corporate
powers of associations, so as to provide succession thereof for a period of
ninety-nine years or until dissolved, and to apply said section as so amended to
all national banking association", approved by the President on July 1, 1922,
provided that all national banking associations organized and operating under
any law of the United States on July 1, 1992 should have succession until
ninety-nine years from that date, unless such association should be sooner
dissolved by the act of its shareholders owning two-thirds of its stock, or
unless its franchise should become forfeited by reason of violation of law, or
unless it should be terminated by an Act of Congress hereinafter enacted;
NOW THEREFORE, I, D. R. Crissinger Comptroller of the Currency, do hereby
certify that The First National Bank of Cincinnati and State of Ohio , was
organized and operating under the laws of the United States on July 1, 1922, and
that its corporate existence was extended for the period of ninety-nine years
from that date in accordance with and subject to the condition in the Act of
Congress hereinbefore recited.
(SEAL) IN TESTIMONY WHEREOF, witness my hand
and seal of office this first day of September,
1922
(Signed) D. R.Crissinger
___________________________________
Comptroller of the Currency
13
<PAGE> 14
EXHIBIT 3
THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE TRUST POWERS:
FEDERAL RESERVE BOARD
Washington, D.C.
October 9, 1919
Pursuant to authority vested in the Federal Reserve Board by the Act of
Congress approved December 23, 1913, known as the Federal Reserve Act, as
amended by the Act of September 26, 1918, the
FIRST NATIONAL BANK OF CINCINNATI
has been granted the right to act, when not in contravention of State or local
law, as TRUSTEE, EXECUTOR, ADMINISTRATOR, REGISTRAR OF STOCKS AND BONDS,
GUARDIAN OF ESTATES, ASSIGNEE, RECEIVER OR IN ANY OTHER FIDUCIARY CAPACITY IN
WHICH STATE BANKS, TRUST COMPANIES OR OTHER CORPORATIONS WHICH COME INTO
COMPETITION WITH NATIONAL BANKS ARE PERMITTED TO ACT UNDER THE LAWS OF THE STATE
OF OHIO. The exercise of such rights shall be subject to regulations prescribed
by the Federal Reserve Board.
Federal Reserve Board,
By W. P. G. Harding
Governor.
ATTEST:
W. T. Chapman
Secretary.
STATE OF OHIO
DEPARTMENT OF BANKS AND BANKING
Certificate of Authority No. 17
NATIONAL BANKS
I, Philip C. Berg, Superintendent of Banks, do hereby certify that the
First National Bank of Cincinnati, Hamilton County, Ohio has complied with all
the requirements provided by law and is authorized to transact the business of a
trust company and to perform all the functions granted to such companies by the
laws of this state.
Given under my hand and official Seal at Columbus,
Ohio, this twenty-fifth day of November, A.D. 1919
Philip C. Berg,
Superintendent of Banks.
(SEAL)
<PAGE> 15
EXHIBIT 4
BY-LAWS
STAR BANK, N.A., CINCINNATI
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING
The annual meeting of shareholders shall be held in the main banking house of
the Association at 11:00 a.m. on the second Tuesday in February of each year.
Notice of such meeting shall be mailed to shareholders not less than ten (10)
nor more than sixty (60) days prior to the meeting date.
SECTION 2. SPECIAL MEETINGS
Special meetings of shareholders may be called and held at such times and upon
such notice as is specified in the Articles of Association.
SECTION 3. QUORUM
A majority of the outstanding capital stock represented in person or by proxy
shall constitute a quorum of any meeting of the shareholders, unless otherwise
provided by law, but less than a quorum may adjourn any meeting, from time to
time, and the meeting may be held as adjourned without further notice.
SECTION 4. INSPECTORS
The Board of Directors may, and in the event of its failure so to do, the
Chairman of the Board shall appoint Inspectors of Election who shall determine
the presence of a quorum, the validity of proxies, and the results of all
elections and all other matters voted upon by shareholders at all annual and
special meetings of shareholders.
SECTION 5. VOTING
In deciding on questions at meetings of shareholders, except in the election of
directors, each shareholder shall be entitled to one vote for each share of
stock held. A majority of votes cast shall decide each matter submitted to the
shareholders, except where by law a larger vote is required. In all elections of
directors, each shareholder shall have the right to vote the number of shares
owned by him for as many persons as there are directors to be elected, or to
cumulate such shares and give one candidate as many votes as the number of
directors multiplied by the number
15
<PAGE> 16
of his shares equal, or to distribute them on the same principle among as many
candidates as he shall think fit.
ARTICLE II
SECTION 1. TERM OF OFFICE
The directors of this Association shall hold office for one year and until their
successors are duly elected and qualified.
SECTION 2. REGULAR MEETINGS
The organization meeting of the Board of Directors shall be held as soon as
practical following the annual meeting of shareholders at the main banking
house. Other regular meetings of the Board of Directors shall be held without
notice at 11:00 a.m. on the second Tuesday of each month except February, at the
main banking house, or, provided notice is given by telegram, letter, telephone
or in person to every Director, at such time and place as may be designated in
the notice of the meeting. When any regular meeting of the Board falls on a
holiday, the meeting shall be held on the next banking business day, unless the
Board shall designate some other day.
SECTION 3. SPECIAL MEETINGS
Special meetings of the Board of Directors may be called by the Chairman of the
Board of the Association, or at the request of three or more Directors. Notice
of the time, place and purposes of such meetings shall be given by telegram,
letter, telephone or in person to every Director.
SECTION 4. QUORUM
A majority of the entire membership of the Board shall constitute a quorum at
any meeting of the Board.
SECTION 5. NECESSARY VOTE
A majority of those Directors present and voting at any meeting of the Board of
Directors shall decide each matter considered, except where otherwise required
by law or the Articles or By-Laws of this Association.
SECTION 6. COMPENSATION
Directors, excluding full-time employees of the Bank, shall receive such
reasonable compensation as may be fixed from time to time by the Board of
Directors.
SECTION 7. ELECTION-AGE LIMITATION
No person shall be elected or reelected a Director after reaching his seventieth
(70th) birthday, provided that any person who is a Director on December 10,
1985, may continue to be reelected a Director until he reaches his seventy-fifth
(75th) birthday.
16
<PAGE> 17
SECTION 8 RETIREMENT-AGE LIMITATION
Every Director of the Bank shall retire no later than the first month next
following his seventieth (70th) birthday, except for any person who was a
Director on December 10, 1985, who shall retire not later that the first of the
next month following his seventy-fifth (75th) birthday.
SECTION 9 DIRECTORS EMERITUS
The Board shall have the right from time to time to choose as Directors Emeritus
persons who have had prior service as members of the Board and who may receive
such compensation as shall be fixed from time to time by the Board of Directors.
ARTICLE III
OFFICERS
SECTION 1 WHO SHALL CONSTITUTE
The Officers of the Association shall be a Chairman of the Board, a President, a
Secretary, and other officers such as Chairman of the Executive Committee, Vice
Chairman of the Board, Executive Vice Presidents, Senior Vice Presidents, Vice
Presidents, Assistant Secretaries, Trust Officers, Trust Investment Officers,
Trust Real Estate Officers, Assistant Trust Officers, a Controller, Assistant
Controller, an Auditor and Assistant Auditors, as the Board may appoint from
time to time. Any person may hold two offices. The Chairman of the Board, all
Vice Chairmen of the Board and the President shall at all times be members of
the Board of Directors.
SECTION 2 TERM OF OFFICE
All officers shall be elected for and shall hold office for one year and until
their successors are elected and qualified, subject to the right in the Board of
Directors by a majority vote of the entire membership to discharge any officer
at any time.
SECTION 3 CHAIRMAN OF THE BOARD (Amended 12/13/88-see attachment)
The Chairman of the Board shall be the Chief Executive Officer of the
Association and shall have all duties, responsibilities and powers of the Chief
Executive Officer. He shall, when present, preside at all meetings of
shareholders and directors and shall be ex officio a member of all committees of
the Board. He shall name all members of the committees of the Board, subject to
the confirmation thereof by the Board.
In the event that there is a vacancy in the position of President or in the
event of the absence or incapacity of the President, the Chairman may appoint,
or in the event of his failure to do so, the Board of Directors or the Executive
Committee thereof may designate any Vice Chairman of the
17
<PAGE> 18
Board, any Executive Vice President or any Senior Vice President of the
Association temporarily to exercise the powers and perform the duties of the
Chairman as Chief Executive Officer when the Chairman is absent or
incapacitated.
The Board of Directors shall have the power to elect a Chairman of the Executive
Committee. Any such Chairman of the Executive Committee shall participate in the
formation of the policies of the Association and shall have such other duties as
may be assigned to him from time to time by the President or by the Board of
Directors.
SECTION 4 PRESIDENT (amended 12/13/88-see attachment)
The President shall participate in the formation and supervision of the policies
and operations of the Association and shall perform such other duties as may be
assigned to him from time to time by the Board of Directors or by the Chairman
of the Board. In the event that there is a vacancy in the position of the
Chairman of the Board, the President shall be the Chief Executive Officer of the
Association and shall have all the powers and perform all the duties of the
Chairman of the Board, including the same power to name temporarily a Chief
Executive Officer to serve in the absence of the President.
SECTION 5 CHAIRMAN OF THE EXECUTIVE COMMITTEE
The Board of Directors shall have the power to elect a Chairman of the Executive
Committee. Any such Chairman of the Executive Committee shall participate in the
formation of the policies of the Association and shall have such other duties as
may be assigned to him from time to time by the President or by the Board of
Directors.
SECTION 6 VICE CHAIRMEN OF THE BOARD
The Board of Directors shall have the power to elect one or more Vice Chairmen
of the Board of Directors. Any such Vice Chairmen of the Board shall participate
in the formation of the policies of the Association and shall have such other
duties as may be assigned to him from time to time by the Chairman of the Board
or by the Board of Directors.
SECTION 7 OTHER OFFICERS
The Secretary and all other officers appointed by the Board of Directors shall
have such duties as defined by law and as may from time to time be assigned to
them by the Chief Executive Officer or the Board of Directors.
SECTION 8 RETIREMENT
Every officer of the Association shall retire not later than the first of the
month next following his sixty-fifth (65th) birthday. The Board of Directors
may, in its discretion, set the retirement date and terms of retirement of an
officer at a date later than provided above.
18
<PAGE> 19
ARTICLE IV
COMMITTEES
SECTION 1 EXECUTIVE COMMITTEE
There shall be a standing committee of Directors in this Association to be known
as the Executive Committee. This Committee shall meet at 11:00 a.m. on the first
and fourth Tuesday of each month. It shall have all of the powers of the Board
of Directors between meetings of the Board, except as the Board only by law is
authorized to perform or exercise. All actions of the Executive Committee shall
be reported to the Board of Directors. In the event that any member of the
Executive Committee is unable to attend a meeting of that committee, the
Chairman of the Board or the President may, at his discretion, appoint another
Director to attend said meeting of the Executive Committee and for that meeting
to serve as a member of the Executive Committee with full power to act in place
of the absent regular member of the committee.
SECTION 2 COMPENSATION COMMITTEE
There shall be a standing committee of directors of this Association to be known
as the Compensation Committee who shall review the compensation of all Executive
Officers and those officers who participate in the Profit Sharing Pool as well
as fees for directors of the Association. They will recommend specific
compensation arrangements to the Board of Directors for their confirmation.
SECTION 3 COMMITTEE ON AUDIT
There shall be a standing committee of Directors of this Association to be known
as the Committee on Audit, none of whose members shall be active officers of the
Association. This Committee shall make or cause to be made a suitable
examination of the affairs of the Association and the Trust Department at least
once during each period of twelve months. The results of such examination shall
be reported in writing to the Board at the next regular meeting thereafter
stating whether the Association and/or Trust Department is in a sound solvent
condition, whether adequate internal audit controls and procedures are being
maintained and make such recommendations as it deems advisable.
SECTION 4 TRUST COMMITTEE
There shall be a standing committee of Directors of this Association to be known
as the Trust Committee. The Trust Committee shall determine policies of the
Department and review actions of the Trust Investment Committee. All actions of
the Trust Committee shall be reported to the Board of Directors.
SECTION 5 TRUST INVESTMENT COMMITTEE
There shall be a standing committee of this Association to be known as the Trust
Investment Committee composed of officers of the Association. The Trust
Investment Committee or such
19
<PAGE> 20
officers as may be duly designated by the Trust Investment Committee, shall pass
upon the acceptance of all trusts, the closing out or relinquishment of all
trusts and the making, retention, or disposition of all investments of trust
funds in conformity with policies established by the Trust Committee. Actions of
the Trust Investment Committee shall be reported to the Trust Committee.
SECTION 6 PENSION COMMITTEE
There shall be a standing committee of directors or officers of this Association
to be known as the Pension Committee, who shall have the powers and duties as
set forth in the Association's Employees' Pension Plan. A report of the
condition of the pension fund shall be submitted annually to the Board of
Directors.
SECTION 7 OTHER COMMITTEES
The Chairman may appoint, from time to time, other committees for such purposes
and with such powers as he or the Board may direct.
ARTICLE V
SEAL
SECTION 1 IMPRESSION
The following is an impression of the seal of this Association.
August 25, 1988
20
<PAGE> 21
RESOLVED, That Section 3 of Article III of the By-Laws of the Bank shall be
amended to read:
SECTION 3 CHAIRMAN OF THE BOARD
The Chairman of the Board shall have general executive powers and duties and
shall perform such other duties as amy be assigned from time to time by the
Board of Directors. In addition, unless the Board of Directors shall have
designated the President to be the Chief Executive Officer, the Chairman of the
Board shall be the Chief Executive Officer and shall have all the powers and
duties of the Chief Executive Officer. He shall, when present, preside at all
meetings of shareholders and directors and shall be ex officio a member of all
committees of the Board. He shall name all members of the committees of the
Board, subject to the confirmation thereof by the Board.
If he is Chief Executive Officer, in the event that there is a vacancy in the
position of President or in the event of the absence or incapacity of the
President, the Chairman may appoint, or in the event of his failure to do so,
the Board of Directors or the Executive Committee thereof may designate, any
Vice Chairman of the Board, any Executive Vice President or any Senior Vice
President of the Association temporarily to exercise the powers and perform the
duties of the Chairman as Chief Executive Officer when the Chairman is absent or
incapacitated.
If the President has been designated Chief Executive Officer by the Board of
Directors, in the event that there is a vacancy in the position of the President
or in the event of the absence or incapacity of the President, the Chairman
shall be the Chief Executive Officer of the Association and shall have all the
powers and perform all the duties of the President, including the powers to name
temporarily a Chief Executive Officer to serve in the absence of the Chairman.
FURTHER RESOLVED, That Section 4 of Article III of the By-Laws of the bank shall
be amended to read:
SECTION 4 PRESIDENT
The President shall have general executive powers and duties and shall perform
such other duties as may be assigned from time to time by the Board of
Directors. In addition, if designated by the Board of Directors, the President
shall be the Chief Executive Officer and shall have all the powers and duties of
the Chief Executive Officer, including the same power to name temporarily a
Chief Executive Officer to serve in the absence of the President if there is a
vacancy in the position of the Chairman or in the event of the absence or
incapacity of the Chairman.
If the Chairman has been designated Chief Executive Officer by the Board of
Directors, in the event that there is a vacancy in the position of the Chairman
of the Board or in the event of the absence or incapacity of the Chairman of the
Board, the President shall be the Chief Executive Officer of the Association and
shall have all the powers and perform all the duties of the Chairman of the
Board, including the same power to name temporarily a Chief Executive Officer to
serve in the absence of the President.
21
<PAGE> 22
EXHIBIT 5
THE CONSENT OF THE TRUSTEE
REQUIRED BY 321 (b) OF THE ACT
Star Bank, National Association, the Trustee executing the statement of
eligibility and qualification to which this Exhibit is attached does hereby
consent that reports of examinations of the undersigned by Federal, State,
Territorial or District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor in accordance with the
provisions of 321 (b) of the Trust Indenture Act of 1939.
STAR BANK, NATIONAL ASSOCIATION
November 26, 1997
_________________ BY: /s/ Robert T. Jones
______________________________________
Date Robert T. Jones
Senior Trust Officer
22
<PAGE> 23
EXHIBIT 6
CONSOLIDATED REPORT OF CONDITION
STAR BANK, NATIONAL ASSOCIATION
FOR SEPTEMBER 30, 1997
All schedules are to be reported in thousands of dollars. Unless
otherwise indicated, report the amount outstanding as of the
last business day of the quarter.
BALANCE SHEET
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
ASSETS
<S> <C>
1. Cash and balances due from depository institutions
a. Noninterest-bearing balances and currency and coin $ 526,425
b. Interest-bearing balances 12,597
2. Securities:
a. Held-to-maturity securities 159,355
b. Available-for-sale securities 1,064,700
3. Federal funds sold and securities purchased under 125,250
agreements to resell in domestic offices
of the bank and of its Edge and Agreements
subsidiaries, and in YBFs
a. Federal funds sold 0
b. Securities purchased under agreements to resell 0
4. Loans and lease financing receivables: 8,118,844
a. Loans and leases, net of unearned income 125,742
b. LESS: Allowance for loan and lease losses
c. LESS: Allocated transfer risk reserve
d. Loans and leases, net of unearned income,allowance, and reserve 7,993,102
5. Trading assets 2,949
6. Premises and fixed assets (including capitalized leases) 139,608
7. Other real estate owned 1,926
8. Investments in unconsolidated subsidiaries and 0
associated companies
9. Customers' liability to this bank on acceptances outstanding 19,149
10. Intangible assets 205,769
11. Other assets 271,621
12. Total assets $10,522,451
</TABLE>
23
<PAGE> 24
CONSOLIDATED REPORT OF CONDITION STAR BANK, NATIONAL ASSOCIATION
FOR SEPTEMBER 30, 1996 CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
LIABILITIES
<S> <C> <C>
13. Deposits:
a. In domestic offices $ 7,851,398
(1) Noninterest-bearing $ 1,523,908
(2) Interest-bearing 6,327,490
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs 136,440
(1) Noninterest-bearing 0
(2) Interest-bearing 136,440
14. Federal funds purchased and securities 1,196,962
sold under agreements to repurchase in
domestic offices of the bank and of its Edge
and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased
b Securities sold under agreements ro repurchase
15. a. Demand notes issued to the U.S. Treasury 990
b. Trading liabilities 0
16. Other borrowed money:
a. With original maturity of one year or less 162
b. With original maturity of more than one year 164
17. Mortgage indebtedness and obligations under capitalizated leases
18. Bank's liability on acceptances executed and outstanding 19,149
19. Subordinated notes and debentures 247,597
20. Other liabilities 190,555
21. Total liabilities 9,643,417
22. Limited-life preferred stock and related surplus 0
23. Perpetual preferred stock and related surplus 0
24. Common Stock 18,200
25. Surplus [exclude all surplus related to preferred stock] 266,382
26. a. Undivided profits and capital reserves 582,869
b. Net unrealized holding gains (losses) on 11,583
available-for-sale securities
27. Cumulative foreign currency translation adjustments 0
28. Total equity capital 879,034
29. Total liabilities, limited-life preferred stock, and equity capital $10,522,451
</TABLE>
24
