<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 10, 1997
REGISTRATION NO. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
AMERICAN FINANCIAL GROUP, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
OHIO 31-1422526
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
</TABLE>
ONE EAST FOURTH STREET
CINCINNATI, OHIO 45202
(513) 579-2121
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
AMERICAN FINANCIAL CAPITAL TRUST II
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 31-6549738
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
</TABLE>
ONE EAST FOURTH STREET
CINCINNATI, OHIO 45202
(513) 579-2121
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
------------------------
JAMES C. KENNEDY, ESQ.
DEPUTY GENERAL COUNSEL AND SECRETARY
AMERICAN FINANCIAL GROUP, INC.
ONE EAST FOURTH STREET
CINCINNATI, OHIO 45202
(513) 579-2538
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
WITH COPIES TO:
EDWARD E. STEINER, ESQ.
KEATING, MUETHING & KLEKAMP
1800 PROVIDENT TOWER
CINCINNATI, OHIO 45202
(513) 579-6467
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
================================================================================================================================
PROPOSED MAXIMUM
PROPOSED MAXIMUM AGGREGATE
TITLE OF EACH CLASS OF AMOUNT TO BE AGGREGATE OFFERING PRICE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE(2)(3) PRICE(2)(3) REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities of American Financial
Group, Inc...........................
Common Stock of American Financial
Group, Inc...........................
Preferred Securities of American
Financial Capital Trust II...........
Guarantee of Preferred Securities
of American Financial Capital
Trust II by American Financial
Group, Inc.(4).......................
Total.................................. $ 500,000,000 100% $500,000,000 $ 151,515.16
================================================================================================================================
</TABLE>
(1) Such indeterminate number or amount of Debt Securities and Common Stock of
American Financial Group, Inc., and Preferred Securities of American
Financial Capital Trust II as may from time to time be issued at
indeterminate prices. Debt Securities of American Financial Group, Inc. may
be issued and sold to American Financial Capital Trust II, in which event
such Debt Securities may later be distributed to the holders of Preferred
Securities of American Financial Capital Trust II upon its dissolution and
the distribution of the assets thereof. 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,
Common Stock and Preferred Securities registered hereby will not exceed
$500,000,000.
(3) Exclusive of accrued interest and distributions, if any.
(4) Includes back-up undertakings, consisting of obligations of American
Financial Group, Inc. to provide certain indemnities in respect of, and pay
and be responsible for certain expenses and debts of American Financial
Capital Trust II. No separate consideration will be received for the
Guarantee or any back-up undertakings.
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.
<PAGE> 3
SUBJECT TO COMPLETION, DATED , 1997
PROSPECTUS
$500,000,000
AMERICAN FINANCIAL GROUP, INC.
DEBT SECURITIES AND COMMON STOCK
AND
AMERICAN FINANCIAL CAPITAL TRUST II
PREFERRED SECURITIES GUARANTEED TO THE EXTENT SET FORTH HEREIN BY AMERICAN
FINANCIAL GROUP, INC.
American Financial Group, Inc. ("AFG" or the "Company") may from time to
time offer, together or separately, (i) 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 and (ii) shares of its Common Stock, par value $1.00 per share
("Common Stock"), in amounts, at prices and on terms to be determined at the
time of the offering.
American Financial Capital Trust II, a statutory business trust formed
under the laws of the State of Delaware (the "Trust"), may from time to time
offer preferred securities, representing undivided beneficial interests in the
assets of the Trust ("Preferred Securities"). The payment of periodic cash
distributions ("Distributions") with respect to Preferred Securities will be
made from moneys held by the Trust, and payments on liquidation, redemption or
otherwise with respect to such Preferred Securities, will be guaranteed (a
"Trust Guarantee") by the Company to the extent described herein. See
"Description of Trust Guarantee." The Company's obligations under the Trust
Guarantee will rank junior and subordinate in right of payment to all other
liabilities of the Company and pari passu with its obligations under the senior-
most preferred or preference stock of the Company. See "Description of Trust
Guarantee -- Status of Trust Guarantees." The proceeds from the offering of
Preferred Securities and Common Securities (as defined herein) by the Trust will
be invested in subordinated debt securities of the Company. The subordinated
debt securities purchased by the Trust may be subsequently distributed pro rata
to holders of Preferred Securities and Common Securities in connection with the
dissolution of the Trust, upon the occurrence of certain events as may be
described in an accompanying supplement to the prospectus ("Prospectus
Supplement").
The Debt Securities, Common Stock and Preferred Securities (collectively
the "Securities") may be offered as separate series or issuances at an aggregate
initial public offering price not to exceed $500,000,000 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 or the Trust. While
the amount of the various 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, none of the Debt Securities, Common Stock nor Preferred Securities will
individually exceed an initial public offering price of $200,000,000.
Specific terms of the particular Securities covered by this Prospectus will
be set forth in a Prospectus Supplement which will describe, where applicable,
(i) in the case of Debt Securities, 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 the Company 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 in respect of which this Prospectus is delivered; (ii) in the
case of Common Stock, the number of shares offered and the terms of the offering
and sale thereof, (iii) in the case of Preferred Securities, the specific
designation, number of securities, liquidation preference per security, the
purchase price, any listing on a securities exchange, distribution rate (or
method of calculation thereof), dates on which distributions shall be payable
and dates from which distributions shall accrue, any voting rights, terms for
any conversion or exchange into other securities, any redemption, exchange or
sinking fund provisions, any other rights, preferences, privileges, limitations
or restrictions relating to the Preferred Securities and the terms upon which
the proceeds of the sale of the Preferred Securities shall be used to purchase a
specific series of Debt Securities of the Company. The Debt Securities may be
issued in registered or bearer form, or both. If so specified in the applicable
Prospectus Supplement, Securities may be issued in whole or in part in the form
of one or more temporary or permanent global securities.
The Securities may be sold by the Company or the Trust 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
Securities in respect of which this Prospectus is being delivered 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.
SEE "RISK FACTORS" ON PAGE 5 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED IN CONNECTION WITH AN INVESTMENT IN THE SECURITIES.
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
------------------------
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 OR THE
TRUST 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 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
The Company 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 has 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 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 AFG 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 the Company 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 AFG's Common Stock is
listed.
No separate financial statements of the Trust have been included or
incorporated by reference herein. The Company does not consider that such
financial statements would be material to holders of the Preferred Securities
because (i) all of the voting securities of the Trust will be owned, directly or
indirectly, by the Company, a reporting company under the Exchange Act, (ii) the
Trust has no independent operations but exists for the sole purpose of issuing
securities representing undivided beneficial interests in its assets and
investing the proceeds thereof in Debt Securities issued by the Company, and
(iii) the obligations of the Trust under the Preferred Securities are fully and
unconditionally guaranteed by the Company to the extent that the Trust shall
have funds available to meet such obligations. See "Description of Preferred
Securities" and "Description of Trust Guarantees."
2
<PAGE> 5
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
This Prospectus incorporates by reference certain documents relating to the
Company 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 Fred J. Runk, Senior Vice President and
Treasurer, One East Fourth Street, Cincinnati, Ohio 45202, telephone (513)
579-2488. The following documents, which have been filed by the Company (File
No. 1-11453) with the Commission, are hereby incorporated by reference in this
Prospectus:
(i) Annual Report on Form 10-K for the year ended December 31, 1995;
(ii) Quarterly Reports on Form 10-Q for the quarters ended March 31,
1996, June 30, 1996 and September 30, 1996; and
(iii) Current Reports on Form 8-K dated February 12, 1996 and
September 20, 1996.
All documents subsequently filed by the Company 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.
3
<PAGE> 6
THE COMPANY
American Financial Group, Inc. ("AFG" or the "Company") is a holding
company which, through its subsidiaries, is engaged primarily in specialty and
multi-line property and casualty insurance businesses and in the sale of
tax-deferred annuities and life and health insurance. AFG's property and
casualty operations originated in 1872 and are the seventeenth largest property
and casualty group in the United States based on 1995 statutory net premiums
written of $3.1 billion. AFG was formed through the combination of American
Premier Underwriters, Inc. ("APU") and American Financial Corporation ("AFC") in
a merger transaction completed in April 1995 (the "Merger"). At September 30,
1996, the Company had total assets of $15.0 billion and shareholders' equity of
$1.5 billion.
THE TRUST
The Trust is a statutory business trust formed under Delaware law pursuant
to (i) a declaration of trust (the "Declaration") executed by the Company as
sponsor for such trust (the "Sponsor"), and the Trustees (as defined herein) of
such trust and (ii) the filing of a certificate of trust with the Secretary of
State of the State of Delaware on February , 1997. The Trust will engage
solely in the following activities: (i) issuing and selling the Preferred
Securities and common securities representing undivided beneficial interests in
the assets of the Trust (the "Common Securities" and, together with the
Preferred Securities, the "Trust Securities"), (ii) using the gross proceeds
from the sale of the Trust Securities to acquire the Debt Securities and (iii)
engaging in only those other activities necessary or incidental thereto. All of
the Common Securities will be directly or indirectly owned by the Company. The
Common Securities will rank pari passu, and payments will be made thereon pro
rata, with the Preferred Securities, except that, if an event of default under
the Declaration has occurred and is continuing, the rights of the holders of the
Common Securities to payment in respect of distributions and payments upon
liquidation, redemption and otherwise will be subordinated to the rights of the
holders of the Preferred Securities. The Company will directly or indirectly
acquire Common Securities, in an aggregate liquidation amount equal to at least
3% of the total capital of the Trust.
The Trust's business and affairs will be conducted by the trustees (the
"Trustees") appointed by the Company as the direct or indirect holder of all of
the Common Securities. The holder of the Common Securities will be entitled to
appoint, remove or replace any of, or increase or reduce the number of, the
Trustees of the Trust. The duties and obligations of the Trustees shall be
governed by the Declaration. The Trust will have three Trustees (the "Regular
Trustees") who are employees or officers of or who are affiliated with the
Company. One Trustee of the Trust will be a financial institution that is not
affiliated with the Company and has a minimum amount of combined capital and
surplus of not less than $50,000,000, which shall act as property trustee and as
indenture trustee for the purposes of compliance with the provisions of Trust
Indenture Act of 1939 (the "Trust Indenture Act"), pursuant to the terms set
forth in the applicable Prospectus Supplement (the "Property Trustee"). In
addition, unless the Property Trustee maintains a principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law,
one Trustee of the Trust will be an entity having a principal place of business
in, or a natural person resident of, the State of Delaware (the "Delaware
Trustee"). The Company will pay all fees and expenses related to the Trust and
the offering of the Trust Securities.
The Property Trustee for the Trust is The Bank of New York and its
principal corporate trust office is at 101 Barclay Street, 21st Floor, New York,
New York 10286, Attention: Corporate Trust Trustee Administration. The Delaware
Trustee for the Trust is The Bank of New York (Delaware) and its address in the
State of Delaware is White Clay Center, Route 273, Newark, Delaware 19711. The
Delaware Trustee is an affiliate of the Property Trustee. The address for the
Trust is c/o American Financial Group, Inc., the Sponsor of the Trust, at the
Company's corporate headquarters located at One East Fourth Street, Cincinnati,
Ohio 45202, telephone (513) 579-2121.
4
<PAGE> 7
RISK FACTORS
Prospective investors in the Securities should consider carefully all of
the information set forth in or incorporated by reference into this Prospectus
and, in particular, should evaluate the specific factors set forth under the
caption "Risk Factors" in the applicable Prospectus Supplement for risks
involved with an investment in the Securities.
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
(including Debt Securities sold to the Trust) or Common Stock 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 and
its subsidiaries. Until the net proceeds are used for these purposes, the
Company may deposit them in interest-bearing accounts or invest them in
short-term marketable securities. The specific allocations, if any, of the
proceeds of any of the Securities will be described in the Prospectus Supplement
relating thereto.
The proceeds from any sale of Preferred Securities by the Trust will be
invested in Debt Securities of the Company.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the historical and pro forma ratios of
earnings to fixed charges for the Company and its subsidiaries. Fixed charges
are computed on a "total enterprise" basis. For purposes of calculating the
ratios, "earnings" have been computed by adding to pretax earnings (excluding
discontinued 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 discount and expense,
preferred dividend requirements of subsidiaries and a portion of rental expense
deemed to represent the interest factor. The pro forma ratios are based on
assumptions that the Merger and related transactions occurred at the beginning
of each of the periods shown.
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
------------- ------------------------------------
1996 1995 1995 1994 1993 1992 1991
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Historical ratio of earnings to
fixed charges ............................... 4.78 2.53 2.60 1.69 2.62 2.15 1.54
Pro forma ratio of earnings to
fixed charges ............................... 3.04 2.93 2.07 3.09
</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. 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 by the Company and Star Bank,
N.A., Cincinnati, Ohio, as trustee (the "Senior Debt Trustee"). In the case of
Debt Securities that will be subordinated debt securities ("Subordinated Debt
Securities"), the Debt Securities will be issued under an Indenture (the
"Subordinated Indenture") to be executed by the Company and The Bank of New
York, as trustee (the "Subordinated Debt
5
<PAGE> 8
Trustee") under the Subordinated Indenture. Subordinated Debt Securities, if
issued, will be initially issued to the Trust in connection with an offering of
Preferred Securities. 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. The statements made under
this caption relating to the Debt Securities and the Indenture are summaries
only, do not purport to be complete, and are qualified in their entirety by
reference to the Indenture or 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 Indenture. Wherever such terms are used herein,
such terms are incorporated by reference from the Indenture 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 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 substantial 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.
6
<PAGE> 9
PROVISIONS APPLICABLE TO THE SENIOR DEBT SECURITIES
DENOMINATIONS, REGISTRATION AND TRANSFER. Unless otherwise indicated in the
applicable Prospectus Supplement, the Senior 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 Senior Debt
Securities, Senior Debt Securities will be issued only in denominations of
$1,000 or any integral multiple thereof.
Senior 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
Senior Debt Securities. If a Prospectus Supplement refers to any transfer agent
initially designated by the Company with respect to any series of Senior 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
Senior Debt Securities of any series for the 15-day period prior to the mailing
of a notice of redemption and, with respect to any Senior Debt Securities called
for redemption in whole or in part (except for the unredeemed portion of any
Senior 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 Senior 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 Senior Debt 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 Senior Indenture,
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 Senior Debt Securities and the performance and
observance of every covenant of the Senior Indenture 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 Senior 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 Senior Indenture and the
Senior Debt Securities.
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 Senior Debt
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Securities: (i) default in the payment of any installment of interest on any
Senior 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 Senior 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 Senior Debt Securities or the Senior 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 Senior Debt Trustee or to
the Company and the Senior Debt Trustee by the holders of 25% in aggregate
principal amount of such series of Senior Debt Securities then Outstanding; (iv)
default shall have occurred under any other series of Senior Debt Securities or
any agreements, indentures or instruments under which the Company then has
outstanding Indebtedness in excess of $15 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
Senior Debt Trustee or to the Company and the Senior Debt Trustee by the holders
of at least 25% in aggregate principal amount of such series of Senior Debt
Securities then Outstanding, provided, that if, prior to the entry of judgment
in favor of the Senior Debt Trustee, such default under such Senior 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 such Senior Indenture; (v)
one or more judgments, orders or decrees for the payment of money in excess of
$15 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 Senior Debt Trustee or to
the Company and the Senior Debt Trustee by the holders of 25% in aggregate
principal amount of such series of Senior 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 Senior Debt Securities, either the Senior
Debt Trustee or the holders of at least 25% in principal amount of the
Outstanding Senior Debt Securities of such series may declare the entire
principal amount, or, in the case of Discounted Securities, such lesser amount
as may be provided for in such Discounted Securities, of all the Senior Debt
Securities of such series to be immediately due and payable.
Under the Senior Indenture, the Company is required to furnish the Senior
Debt Trustee annually a statement by certain officers of the Company to the
effect that to the best of their knowledge the Company is not in default in the
fulfillment of any of its obligations under the Senior Indenture or, if there
has been a default in the fulfillment of any such obligation, specifying each
such default.
The Senior Indenture provides that the Senior Debt Trustee shall, within 90
days after the occurrence of a default with respect to a particular series of
Senior Debt Securities (unless such default has been cured or waived), give the
holders of the Senior 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 Senior Debt
Securities of such series, the Senior Debt 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 Senior Debt Securities of such
series.
The holders of a majority in principal amount of a particular series of
Senior 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 Senior Debt Trustee with respect to such series
or exercising any trust or power conferred on the Senior Debt Trustee, and to
waive certain defaults. The Senior Indenture provides that in case an Event of
Default shall occur and be continuing, the Senior Debt Trustee shall exercise
such of its rights and powers under the Senior 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 Senior Debt Trustee will be under no obligation to exercise
any of its
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rights or powers under the Senior Indenture at the request of any of the holders
of the Senior Debt Securities unless they shall have offered to the Senior Debt
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request.
SATISFACTION AND DISCHARGE. Except as may otherwise be set forth in the
Prospectus Supplement relating to a series of Senior Debt Securities, the Senior
Indenture provides that the Company shall be deemed to have satisfied and
discharged its obligations under the Senior 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 Senior Debt 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 Senior Debt
Securities of such series, (b) the Company has paid all other sums payable with
respect to the Senior Debt Securities of such series and (c) certain other
conditions are met. Upon such discharge, the holders of the Senior Debt
Securities of such series shall no longer be entitled to the benefits of the
Senior Indenture, except for certain rights, including registration of transfer
and exchange of the Senior Debt Securities of such series and replacement of
mutilated, destroyed, lost or stolen Senior Debt Securities, and shall look only
to such deposited funds.
Such discharge may be treated as a taxable exchange of the related Senior
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 Senior
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 Senior 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 Senior
Debt Securities) of the Senior Indenture may be made by the Company and the
Senior Debt Trustee without the consent of holders of the Senior Debt
Securities. Other modifications and amendments of each Senior Indenture require
the consent of the holders of more than 50% in principal amount of the
Outstanding Senior Debt Securities of each series issued under the Senior
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 Senior 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 Senior Debt Security, (b) reduce the principal amount of (or
premium, if any) or interest, if any, on any Senior Debt Security, (c) reduce
the amount of principal of a Discounted Senior 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 Senior 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 Senior Debt Securities of any series, the consent of the holders of
which is required for modification or amendment of such Senior Indenture or for
waiver of compliance with certain provisions of such Senior Indenture or for
waiver of certain defaults.
The holders of a majority in principal amount of the Outstanding Senior
Debt Securities of any series may on behalf of the holders of all Senior Debt
Securities of that series waive, insofar as that series is concerned, compliance
by the Company with certain restrictive provisions of the Senior Indenture. The
holders of a majority in principal amount of the Outstanding Senior Debt
Securities of any series may on behalf of the holders of all Senior Debt
Securities of that series waive any past default under the Senior 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 Senior 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
DENOMINATIONS, REGISTRATION AND TRANSFER. If Subordinated Debt Securities
are distributed to holders of Preferred Securities in liquidation of such
holders' interests in the Trust, it is presently anticipated that such
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Subordinated Debt Securities will initially be issued in the form of one or more
Global Securities (as defined below). As described herein, under certain limited
circumstances, Subordinated Debt Securities may be issued in definitive
certificated form in exchange for a Global Security. See "-- Book-Entry and
Settlement" below. Payments on Subordinated Debt Securities issued as a Global
Security will be made to DTC or its nominee, a successor depository or its
nominee. In the event Subordinated Debt Securities are issued in definitive
certificated form, principal and interest will be payable, the transfer of the
Subordinated Debt Securities will be registrable and Subordinated Debt
Securities will be exchangeable for Subordinated Debt Securities of other
denominations of a like aggregate principal amount at the principal corporate
trust office of the Subordinated Debt Trustee in New York, New York; provided
that payment of interest may be made at the option of the Company by check
mailed to the address of the persons entitled thereto.
SUBORDINATION. 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, 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, (i) the
principal, premium, if any, and interest in respect of (A) indebtedness of the
Company for money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds or other similar instruments issued by the Company; (ii) all
capital lease obligations of the Company; (iii) all obligations of the Company
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of the Company and all obligations of the Company under any
title retention agreement (but excluding trade accounts payable arising in the
ordinary course of business); (iv) all obligations of the Company 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
the Company is responsible or liable as obligor, guarantor or otherwise,
including under all support agreements or guarantees by the Company of
debentures, notes and other securities issued by its subsidiaries; 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 the Company (whether or
not such obligation is assumed by the Company); 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 that is a financing entity of the Company (a
"financing entity") in connection with the issuance by such financing entity of
securities that are similar to the Preferred Securities. Such Senior
Indebtedness shall continue to be Senior Indebtedness and be entitled to the
benefits of the
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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.
OPTION TO CHANGE SCHEDULED MATURITY DATE. The Company may extend the
scheduled maturity date for one or more periods. The Company must satisfy the
following conditions on the date the Company exercises such right and on the
Maturity Date then in effect prior to such proposed extension: (a) the Company
is not in bankruptcy or otherwise insolvent, (b) the Company is not in default
on any Subordinated Debt Securities issued to the Trust or to any trustee of the
Trust in connection with an issuance of Trust Securities by the Trust, (c) the
Company has made timely payments on the Subordinated Debt Securities for the
immediately preceding six quarters without deferrals, (d) the Trust is not in
arrears on payments of distributions on the Trust Securities, (e) the
Subordinated Debt Securities or Preferred Securities are rated investment grade
by any one of Standard & Poor's Corporation, Moody's Investors Service, Inc.,
Fitch Investor Services, Duff & Phelps Credit Rating Company or any other
nationally recognized statistical rating organization, and (f) the final
maturity of such Subordinated Debt Securities is not later than the 49th
anniversary of the issuance of the Preferred Securities. Pursuant to the
Declaration, the Regular Trustees are required to give notice of the Company's
election to change the Maturity Date to the holders of the Preferred Securities.
OPTION TO EXTEND INTEREST PAYMENT PERIOD. The Company has the right, from
time to time, to defer payment of interest on the Subordinated Debt Securities
for up to 20 consecutive quarters, provided that no Extension Period may extend
beyond the Maturity Date of the Subordinated Debt Securities. There could be
multiple Extension Periods of varying lengths during the term of the
Subordinated Debt Securities. At the end of each Extension Period, if any, the
Company shall pay all interest then accrued and unpaid, together with interest
thereon, compounded quarterly at the rate specified for the Subordinated Debt
Securities to the extent permitted by applicable law ("Compound Interest"). In
the event the Company exercises this right, then during any Extension Period,
(a) the Company shall not declare or pay any dividends on, make any distribution
with respect to, or redeem, purchase, acquire or make a liquidation payment with
respect to any of its capital stock and (b) the Company shall not, directly or
indirectly, and will not allow any of its subsidiaries to, make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities issued by the Company that rank pari passu with or junior to the
Subordinated Debt Securities; provided, however, that, the restriction in clause
(a) above does not apply (i) to repurchases or acquisitions of shares of common
stock of the Company as contemplated by any employment arrangement, benefit plan
or other similar contract with or for the benefit of employees, officers or
directors entered into in the ordinary course of business, (ii) as a result of
an exchange or conversion of any class or series of the Company's capital stock
for common stock, (iii) to the purchase of fractional interests in shares of the
Company's capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged or (iv) to the
payment of any stock dividend by the Company payable in common stock. Prior to
the termination of any such Extension Period, the Company may further defer
payments of interest by extending the interest payment period; provided,
however, that each Extension Period, including all such previous and further
extensions if any, may not exceed 20 consecutive quarters or extend beyond the
Maturity Date. Upon the termination of any Extension Period and the payment of
all amounts then due, the Company may commence a new Extension Period, subject
to the terms set forth in this section. No interest during an Extension Period,
except at the end thereof, shall be due and payable.
COVENANTS RELATING TO THE TRUST. The Subordinated Indenture requires that
for so long as the Preferred Securities and the Common Securities remain
outstanding, the Company will be required to (i) maintain 100% of direct or
indirect ownership of the Common Securities, provided, however, that any
permitted successor of the Company under the Subordinated Indenture may succeed
to the Company's ownership of the Common Securities, (ii) not voluntarily
dissolve, wind-up or terminate the Trust, except in connection with the
distribution of Subordinated Debt Securities or certain mergers, consolidations
or amalgamations, each as permitted by the Declaration, (iii) timely perform its
duties as sponsor of the Trust, (iv) use its reasonable
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efforts to cause the Trust (a) to remain a business trust classified as a
grantor trust, except in connection with a distribution of the Subordinated Debt
Securities to the holders of Preferred Securities in liquidation of the Trust,
the redemption of all of the Preferred Securities and Common Securities of the
Trust or certain mergers, consolidations or amalgamations, each as permitted by
the Declaration, and (b) continue not to be treated as an association taxable as
a corporation for United States federal income tax purposes other than in
connection with a distribution of the Subordinated Debt Securities to the
holders of Preferred Securities in liquidation of the Trust, and (v) use its
reasonable efforts to cause each holder of Preferred Securities and Common
Securities to be treated as owning an undivided beneficial interest in the
Subordinated Debt Securities.
CONSOLIDATION, MERGER AND TRANSFER OF ASSETS. Upon any consolidation of the
Company with, or merger of the Company into, any other person or any conveyance,
transfer or lease of the properties and assets of the Company substantially as
an entirety, the successor person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under the Subordinated Indenture with the same effect as the Company
prior to such transaction, and thereafter, except in the case of a lease, the
Company shall be relieved of all obligations and covenants under the
Subordinated Indenture and the Subordinated Debt Securities.
EVENTS OF DEFAULT. The occurrence of any of the following events with
respect to the Subordinated Debt Securities will, unless otherwise specified,
constitute an "Event of Default" with respect to the Subordinated Debt
Securities: (i) default for thirty (30) days in the payment of any installment
of interest on the Subordinated Debt Securities; (ii) default in the payment of
any of the principal of the Subordinated Debt Securities when due, whether at
maturity, upon redemption, by declaration of acceleration or otherwise; (iii)
default for sixty (60) days by the Company in the observance or performance of
any other covenant or agreement contained in the Subordinated Debt Securities or
the Subordinated Indenture (other than a covenant or agreement default which is
specifically designated as having a different time period) for the benefit of
the Subordinated Debt Securities after written notice thereof as provided in the
Subordinated Indenture; (iv) (a) an event of default occurs under any instrument
(including the Subordinated Indenture) under which there is at the time
outstanding, or by which there may be secured or evidenced, any indebtedness of
the Company for money borrowed by the Company (other than non-recourse
indebtedness) which results in acceleration or nonpayment at maturity (after
giving effect to any applicable grace period) of such indebtedness in an
aggregate amount exceeding $15 million, or any such indebtedness exceeding $15
million shall otherwise be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled prepayment or exercise of an
optional prepayment right), prior to the stated maturity thereof, or any failure
by the Company to make any payment under a guarantee in respect of any
indebtedness, in each case in an amount of at least $15 million, on the date
such payment is due (or within any grace period specified in the agreement or
other instrument governing such indebtedness); in which case the Company shall
immediately give notice to the Trustee of such acceleration or non-payment, and
(b) there shall have been a failure to cure such default or to pay or discharge
such defaulted indebtedness within ten (10) days after written notice thereof as
provided in the Subordinated Indenture; (v) any final non-appealable judgment or
order for the payment of money in excess of $15 million is rendered against the
Company, such judgment or order is not satisfied by payment or bonded and either
enforcement proceedings have been commenced by the judgment creditor or there
has been a period of 60 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall not
have been in effect; provided, however, that a judgment or order fully covered
by insurance (or a judgment or order for the payment of money covered by
insurance to the extent of all payments in excess of $15 million), which
coverage has not been disputed by the insurer, shall not be considered a default
or an Event of Default; or (vi) certain events of bankruptcy, insolvency or
reorganization relating to the Company.
In addition, an Event of Default shall include the voluntary or involuntary
dissolution or winding up of the business of the Trust or other termination of
the existence of the Trust, other than in connection with (i) the distribution
of the Subordinated Debt Securities to holders of the Trust Securities in
liquidation of their
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interests in the Trust, (ii) the redemption of all of the outstanding Trust
Securities, or (iii) certain mergers, consolidations or amalgamations of the
Trust, each as permitted by the Declaration.
If any Event of Default shall occur and be continuing, the Property
Trustee, as the holder of the Subordinated Debt Securities, will have the right
to declare the principal of and the interest on the Subordinated Debt Securities
(including any Compound Interest and any other amounts payable under the
Subordinated Indenture) to be forthwith due and payable and to enforce its other
rights as a creditor with respect to the Subordinated Debt Securities subject to
the subordination provisions in the Subordinated Indenture. An Event of Default
also constitutes a Declaration Event of Default. If the Property Trustee fails
to enforce its rights with respect to the Subordinated Debt Securities held by
the Trust, any record holder of Preferred Securities may institute legal
proceedings directly against the Company to enforce the Property Trustee's
rights under such Subordinated Debt Securities without first instituting any
legal proceedings against such Property Trustee or any other person or entity.
In addition, if a Declaration Event of Default has occurred and is continuing
and such event is attributable to the failure of the Company to pay interest or
principal on the Subordinated Debt Securities issued to the Trust on the date
such interest or principal is otherwise payable, then a record holder of
Preferred Securities may institute a proceeding directly against the Company for
enforcement of payment to the record holder of the Preferred Securities of the
principal of or interest on the Subordinated Debt Securities on or after the
respective due dates specified in the Subordinated Debt Securities, and the
amount of the payment will be based on the holder's pro rata share of the amount
due and owing on all of the Preferred Securities. The record holder in the case
of the issuance of one or more global Preferred Securities certificates will be
DTC acting at the direction of its Direct Participants, who in turn will be
acting at the direction of the Beneficial Owners. The holders of Preferred
Securities in certain circumstances have the right to direct the Property
Trustee to exercise its rights, with respect to other than principal and
interest payments on the Subordinated Debt Securities, as the holder of the
Subordinated Debt Securities. See "Description of the Preferred
Securities -- Declaration Events of Default" and "Description of the Preferred
Securities -- Voting Rights."
SATISFACTION AND DISCHARGE. Except as may otherwise be set forth in the
Prospectus Supplement relating to Subordinated Debt Securities, the Subordinated
Indenture provides that the Company shall be deemed to have satisfied and
discharged its obligations under the Subordinated Debt Securities (with certain
exceptions) at any time prior to the final maturity or redemption thereof when
(a) the Company has deposited with the Subordinated Debt Trustee, in trust,
sufficient funds to pay the principal of (and premium, if any) and interest, if
any, to maturity (or to Redemption Date) on, the Subordinated Debt Securities,
(b) the Company has paid all other sums payable with respect to the Subordinated
Debt Securities and (c) certain other conditions are met. Upon such discharge,
the holders of the Subordinated Debt Securities of such series shall no longer
be entitled to the benefits of the Subordinated Indenture, except for certain
rights, including registration of transfer and exchange of the Subordinated Debt
Securities of such series and replacement of mutilated, destroyed, lost or
stolen Subordinated Debt Securities, and shall look only to such deposited
funds.
Such discharge may be treated as a taxable exchange of the related
Subordinated Debt Securities for an issue of obligations of the trust or a
direct interest in the cash and securities held in the trust referred to in the
prior paragraph. In that case, holders of such Subordinated 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 Subordinated 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 Subordinated Debt
Securities) of the Subordinated Indenture may be made by the Company and the
Subordinated Debt Trustee without the consent of holders of the Subordinated
Debt Securities. Other modifications and amendments of each Subordinated
Debenture require the consent of the holders of more than 50% in principal
amount of the Subordinated Debt Securities issued under the Subordinated
Indenture affected by the modification or amendment; provided, however, that no
such modification or amendment may, without the consent of the holder of each
Subordinated Debt Security
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affected thereby, (a) change the Stated Maturity of the principal of, or any
installment of principal of or interest, if any, on any Subordinated Debt
Security, (b) reduce the principal amount of (or premium, if any) or interest,
if any, on any Subordinated Debt Security, (c) reduce the amount of principal of
a Subordinated 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 Subordinated 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 Senior Debt Securities
of any series, the consent of the holders of which is required for modification
or amendment of such Senior Indenture or for waiver of compliance with certain
provisions of such Senior Indenture or for waiver of certain defaults.
The holders of a majority in principal amount of the Subordinated Debt
Securities may on behalf of the holders of all Subordinated Debt Securities
waive compliance by the Company with certain restrictive provisions of the
Subordinated Indenture. The holders of a majority in principal amount of the
Subordinated Debt Securities may on behalf of the holders of all Subordinated
Debt Securities waive any past default under the Subordinated Indenture, except
a default in the payment of the principal of (or premium, if any) and interest,
if any, on any Subordinated Debt Security or in respect of a provision which
under the Subordinated Indenture cannot be modified or amended without the
consent of the holder of each Subordinated Debt Security affected; provided,
however, that no waiver of any past default or compliance with any covenant
shall be effective without the prior consent of the holders of at least a
majority of the aggregate liquidation preference of the outstanding Preferred
Securities unless the principal of and any premium on the Subordinated Debt
Securities and all accrued and unpaid interest thereon has been paid in full.
DESCRIPTION OF COMMON STOCK
AFG is incorporated under the laws of the State of Ohio. The following
description is a summary and is qualified in its entirety by the provisions of
AFG's Articles of Incorporation, Code of Regulations and the Ohio General
Corporation Law.
The total number of authorized shares of Common Stock is 200,000,000.
Holders of Common Stock are entitled to one vote for each share held of record
on all matters submitted to a vote of shareholders. Holders of Common Stock have
the right to cumulate their votes in the election of directors but are not
entitled to any preemptive rights.
Subject to preferences which may be granted to holders of preferred stock,
holders of Common Stock are entitled to such dividends as the Board of
Directors, in its discretion, may validly declare from funds legally available.
In the event of liquidation, each outstanding share of Common Stock entitles its
holder to participate ratably in the assets remaining after the payment of
liabilities and any preferred stock liquidation preferences.
AFG is authorized to issue 12,500,000 shares of voting preferred stock and
12,500,000 shares of nonvoting preferred stock, each without par value, none of
which is outstanding. AFG's Articles of Incorporation authorize the Board of
Directors, without further shareholder approval, to designate for any series of
preferred stock not fixed in AFG's Articles of Incorporation the designations,
preferences, conversion rights, and relative, participating, optional and other
special rights, and such qualifications, limitations or restrictions, as they
determine and as are permitted by the Ohio General Corporation Law.
AFG's stock option plan allows for the grant of options for shares of
Common Stock at a price not less than the fair market value of the underlying
Common Stock at the date of grant. Options granted to officers and key employees
become exercisable at the rate of 20% per year commencing one year after grant;
those granted to non-employee directors of AFG are fully exercisable upon grant.
All options expire ten years after the date of grant. At December 31, 1996,
there were 5.4 million shares of Common Stock reserved for issuance upon
exercise of the options and 3.3 million options outstanding.
The affirmative vote of the holders of a majority of the outstanding shares
of Common Stock is required to amend the Articles of Incorporation and to
approve mergers, reorganizations, share exchanges and similar transactions.
The Company acts as its own transfer agent and registrar.
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<PAGE> 17
DESCRIPTION OF PREFERRED SECURITIES OF THE TRUST
The following summary of certain provisions of the Declaration of Trust of
the Trust (the "Declaration") does not purport to be complete and is subject to
and qualified in its entirety by reference to the Declaration, a copy of which
is included as an exhibit to the Registration Statement of which this Prospectus
is a part.
The Trust may issue a series of Preferred Securities having terms described
in the Prospectus Supplement relating thereto. The Declaration authorizes the
Regular Trustees of the Trust to issue on behalf of the Trust one series of
Preferred Securities. The Declaration will be qualified as an indenture under
the Trust Indenture Act. The Preferred Securities will have such terms,
including distributions, redemption, voting, liquidation rights and such other
preferred, deferred or other special rights or such restrictions as shall be
established by the Regular Trustees in accordance with the Declaration or as
shall be set forth in the Declaration or made part of the Declaration by the
Trust Indenture Act. Reference is made to any Prospectus Supplement relating to
the Preferred Securities of the Trust for specific terms of the Preferred
Securities, including, to the extent applicable, (i) the distinctive designation
of such Preferred Securities, (ii) the number of Preferred Securities issued by
the Trust, (iii) the annual distribution rate (or method of determining such
rate) for Preferred Securities issued by the Trust and the date or dates upon
which such distributions shall be payable (provided, however, that distributions
on such Preferred Securities shall, subject to any deferral provisions, and any
provisions for payment of defaulted distributions, be payable on a quarterly
basis to Holders of such Preferred Securities as of a record date in each
quarter during which such Preferred Securities are outstanding), (iv) any right
of the Trust to defer quarterly distributions on the Preferred Securities as a
result of an interest deferral right exercised by the Company on the Debt
Securities held by the Trust; (v) whether distributions on Preferred Securities
shall be cumulative, and, in the case of Preferred Securities having such
cumulative distribution rights, the date or dates or method of determining the
date or dates from which distributions on Preferred Securities shall be
cumulative, (vi) the amount or amounts which shall be paid out of the assets of
the Trust to the Holders of Preferred Securities upon voluntary or involuntary
dissolution, winding-up or termination of the Trust, (vii) the obligation or
option, if any, of the Trust to purchase or redeem Preferred Securities and the
price or prices at which, the period or periods within which and the terms and
conditions upon which Preferred Securities shall be purchased or redeemed, in
whole or in part, pursuant to such obligation or option, (viii) the voting
rights, if any, of Preferred Securities in addition to those required by law,
including the number of votes per Preferred Security and any requirement for the
approval by the Holders of Preferred Securities as a condition to specified
action or amendments to the Declaration, (ix) the terms and conditions, if any,
upon which Debt Securities held by the Trust may be distributed to holders of
Preferred Securities, and (x) any other relevant rights, preferences,
privileges, limitations or restrictions of Preferred Securities consistent with
the Declaration or with applicable law. All Preferred Securities offered hereby
will be guaranteed by the Company to the extent set forth below under
"Description of Trust Guarantee." Certain United States federal income tax
considerations applicable to any offering of Preferred Securities will be
described in the Prospectus Supplement relating thereto.
The Declaration authorizes the Regular Trustees to issue on behalf of the
Trust one series of Common Securities having such terms including distributions,
redemption, voting, liquidation rights or such restrictions as shall be
established by the Regular Trustees in accordance with the Declaration or as
shall otherwise be set forth therein. The terms of the Common Securities issued
by the Trust will be substantially identical to the terms of the Preferred
Securities issued by the Trust, and the Common Securities will rank pari passu,
and payments will be made thereon pro rata, with the Preferred Securities except
that, if an event of default under the Declaration has occurred and is
continuing, the rights of the holders of the Common Securities to payment in
respect of distributions and payments upon liquidation, redemption and otherwise
will be subordinated to the rights of the holders of the Preferred Securities.
An event of default under the Declaration will be deemed to have occurred
whenever an event of default (as defined in the Indenture) shall have occurred
with respect to the Debt Securities held by the Trust. Except in certain limited
circumstances, the Common Securities will also carry the right to vote and to
appoint, remove or replace any of the Trustees of the Trust. All of the Common
Securities of the Trust will be directly or indirectly owned by the Company.
15
<PAGE> 18
DESCRIPTION OF TRUST GUARANTEE
Set forth below is a summary of information concerning the Trust Guarantee
that will be executed and delivered by the Company for the benefit of the
holders, from time to time, of Preferred Securities. The Trust Guarantee will be
qualified as an indenture under the Trust Indenture Act. The Bank of New York
will act as indenture trustee under the Trust Guarantee (the "Preferred
Securities Guarantee Trustee"). The terms of the Trust Guarantee will be those
set forth in such Trust Guarantee and those made part of such Trust Guarantee by
the Trust Indenture Act. The summary of certain provisions of the Trust
Guarantee does not purport to be complete and is subject to and qualified in its
entirety by reference to the provisions of the form of Trust Guarantee, a copy
of which has been filed as an exhibit to the Registration Statement of which
this Prospectus is a part, and the Trust Indenture Act. The Trust Guarantee will
be held by the Preferred Securities Guarantee Trustee for the benefit of the
holders of the Preferred Securities of the Trust.
GENERAL
Pursuant to the Trust Guarantee, the Company will irrevocably and
unconditionally agree, to the extent set forth therein, to pay in full to the
holders of the Preferred Securities, the Trust Guarantee Payments (as defined
below) (except to the extent paid by the Trust), as and when due, regardless of
any defense, right of set-off or counterclaim which the Trust may have or
assert. The following payments or distributions with respect to the Preferred
Securities (the "Trust Guarantee Payments"), to the extent not paid by the
Trust, will be subject to the Trust Guarantee (without duplication): (i) any
accrued and unpaid distributions that are required to be paid on such Preferred
Securities, to the extent the Trust shall have funds available therefor, (ii)
the redemption price, including all accrued and unpaid distributions to the date
of redemption (the "Redemption Price"), to the extent the Trust has funds
available therefor, with respect to any Preferred Securities called for
redemption by the Trust and (iii) upon a voluntary or involuntary dissolution,
winding-up or termination of the Trust (other than in connection with the
distribution of Debt Securities to the holders of Preferred Securities or the
redemption of all of the Preferred Securities upon maturity or redemption of the
Debt Securities) the lesser of (a) the aggregate of the liquidation amount and
all accrued and unpaid distributions on such Preferred Securities to the date of
payment, to the extent the Trust has funds available therefor or (b) the amount
of assets of the Trust remaining for distribution to holders of such Preferred
Securities in liquidation of the Trust. The Company's obligation to make a Trust
Guarantee Payment may be satisfied by direct payment of the required amounts by
the Company to the holders of Preferred Securities or by causing the Trust to
pay such amounts to such holders.
The Trust Guarantee will be a full and unconditional guarantee with respect
to the Preferred Securities from the time of issuance of such Preferred
Securities but will not apply to any payment of distributions except to the
extent the Trust shall have funds available therefor. If the Company does not
make interest or principal payments on the Debt Securities purchased by the
Trust, the Trust will not pay distributions on the Preferred Securities issued
by the Trust and will not have funds available therefor.
The Company has also agreed to irrevocably and unconditionally guarantee
the obligations of the Trust with respect to the Common Securities (the "Trust
Common Guarantee") to the same extent as the Trust Guarantee, except that, if an
Event of Default under the Indenture has occurred and is continuing, holders of
Preferred Securities under the Trust Guarantee shall have priority over holders
of the Common Securities under the Trust Common Guarantee with respect to
distributions and payments on liquidation, redemption or otherwise.
CERTAIN COVENANTS OF THE COMPANY
In the Trust Guarantee, the Company will covenant that, so long as any
Preferred Securities remain outstanding, if there shall have occurred any event
of default under the Trust Guarantee or under the Declaration, then (a) the
Company will not declare or pay any dividend on, make any distributions with
respect to, or redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock; (b) the Company shall not make any payment
of interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities (including guarantees) issued by the Company which rank pari
16
<PAGE> 19
passu with or junior to the Debt Securities issued to the Trust and (c) the
Company shall not make any guarantee payments with respect to the foregoing
(other than pursuant to the Trust Guarantee)provided, however, that the Company
may declare and pay a stock dividend where the dividend stock is the same stock
as that on which the dividend is being paid.
MODIFICATION OF THE TRUST GUARANTEES; ASSIGNMENT
Except with respect to any changes that do not adversely affect the rights
of holders of Preferred Securities (in which case no consent of such holders
will be required), the Trust Guarantee may be amended only with the prior
approval of the holders of not less than a majority in liquidation amount of the
outstanding Preferred Securities. The manner of obtaining any such approval of
holders of such Preferred Securities will be set forth in an accompanying
Prospectus Supplement. All guarantees and agreements contained in the Trust
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Company and shall inure to the benefit of the holders of
the Preferred Securities then outstanding.
EVENTS OF DEFAULT
An event of default under the Trust Guarantee will occur upon the failure
of the Company to perform any of its payment or other obligations thereunder.
The holders of a majority in liquidation amount of the Preferred Securities have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Preferred Securities Guarantee Trustee in respect of
the Trust Guarantee or to direct the exercise of any trust or power conferred
upon the Preferred Securities Guarantee Trustee under the Trust Guarantee.
If the Preferred Securities Guarantee Trustee fails to enforce the Trust
Guarantee, any holder of Preferred Securities may institute a legal proceeding
directly against the Company to enforce its rights under the Trust Guarantee
without first instituting a legal proceeding against the Trust, the Preferred
Securities Guarantee Trustee or any other person or entity. The Company has
waived any right or remedy to require that any action be brought first against
the Trust or any other person or entity before proceeding directly against the
Company.
The Company will be required to provide annually to the Preferred
Securities Guarantee Trustee a statement as to the performance by the Company of
certain of its obligations under the Trust Guarantee and as to any default in
such performance.
INFORMATION CONCERNING THE PREFERRED SECURITIES GUARANTEE TRUSTEE
The Preferred Securities Guarantee Trustee, prior to the occurrence of a
default, undertakes to perform only such duties as are specifically set forth in
the Trust Guarantee and, after default with respect to the Trust Guarantee,
shall exercise the same degree of care as a prudent individual would exercise in
the conduct of his or her own affairs. Subject to such provision, the Preferred
Securities Guarantee Trustee is under no obligation to exercise any of the
powers vested in it by the Trust Guarantee at the request of any holder of
Preferred Securities unless it is offered reasonable indemnity against the
costs, expenses and liabilities that might be incurred thereby.
TERMINATION OF THE TRUST GUARANTEE
The Trust Guarantee will terminate as to the Preferred Securities upon full
payment of the Redemption Price of all Preferred Securities, upon distribution
of the Debt Securities held by the Trust to the holders of all of the Preferred
Securities or upon full payment of the amounts payable in accordance with the
Declaration upon liquidation of the Trust. The Trust Guarantee will continue to
be effective or will be reinstated, as the case may be, if at any time any
holder of Preferred Securities must restore payment of any sums paid under such
Preferred Securities or the Trust Guarantee.
17
<PAGE> 20
STATUS OF THE TRUST GUARANTEE
The Trust Guarantee will constitute an unsecured obligation of the Company
and will rank (i) subordinate and junior in right of payment to all other
liabilities of the Company, including the Debt Securities, except those
liabilities of the Company made pari passu or subordinate by their terms, (ii)
pari passu with the most senior preferred or preference stock now or hereafter
issued by the Company and with any guarantee now or hereafter entered into by
the Company in respect of any preferred or preference stock of any affiliate of
the Company and (iii) senior to the Company's Common Stock. The terms of the
Preferred Securities provide that each holder of Preferred Securities by
acceptance thereof agrees to the subordination provisions and other terms of the
Trust Guarantee.
The Trust Guarantee will constitute a guarantee of payment and not of
collection (that is, the guaranteed party may institute a legal proceeding
directly against the Company to enforce its rights under the Trust Guarantee
without instituting a legal proceeding against any other person or entity).
PLAN OF DISTRIBUTION
The Company and the Trust may offer and sell 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 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 purchase price of the Securities and the proceeds
to the Company or the Trust 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 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.
Securities may be offered and sold, and offers to purchase such securities
may be solicited, by agents designated by the Company or the Trust from time to
time. Any such agent involved in the offer or sale of the 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 or the Trust to such
agent) will be set forth, in the applicable Prospectus Supplement. Unless
otherwise indicated in such Prospectus Supplement, any such agent will be acting
on a best efforts basis for the period of its appointment.
If an underwriter or underwriters are utilized in the sale of Securities,
the Company or the Trust will execute an underwriting agreement with such
underwriter or 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 the Securities in respect of which such
Prospectus Supplement is delivered to the public. If underwriters are used in
the sale, such underwriters will acquire Securities for their own account and
may resell such 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. 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 Securities offered thereby. If any underwriters are utilized
in the sale of the 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 with respect to a sale of Securities will be obligated to
purchase all such Securities, if any are purchased.
If a dealer is utilized in the sale of the Securities, the Company or the
Trust will sell such Securities to the dealer, as principal. The dealer may then
resell such 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.
18
<PAGE> 21
Agents, underwriters and dealers may be entitled under agreements that may
be entered into with the Company or the Trust to indemnification by the Company
or the Trust against certain liabilities, including liabilities under the
Securities Act of 1933, as amended, 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
Securities may be deemed "underwriters" within the meaning of the Securities Act
of 1933, as amended, of the Securities so offered.
Offers to purchase Securities may be solicited directly by the Company or
the Trust and sales thereof may be made by the Company or the Trust 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 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 Securities in the secondary market or may make a market in the
Securities, but are not obligated to do so, and there can be no assurance that
there will be a secondary market for the Securities or liquidity in the
secondary market if one develops.
If so indicated in the applicable Prospectus Supplement, the Company or the
Trust will authorize agents, underwriters or dealers to solicit offers by
certain institutions to purchase Securities from the Company or the Trust 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 Securities pursuant to Contracts accepted by the Company or the
Trust. The Contracts will be subject to the conditions set forth in the
applicable Prospectus Supplement.
As one of the means of direct issuances of Securities, the Company or the
Trust may utilize the services of an entity through which it may conduct an
electronic "dutch auction" or similar offering of the Securities among potential
purchasers who are eligible to participate in the auction or offering of such
Securities, if so described in the applicable Prospectus Supplement.
The anticipated place and time of delivery for the Securities in respect of
which this Prospectus is delivered will be set forth in the applicable
Prospectus Supplement.
LEGAL MATTERS
The validity of the Securities offered hereby other than the Preferred
Securities will be passed upon for the Company and the Trust by Keating,
Muething & Klekamp, P.L.L., Cincinnati, Ohio. Certain United States federal
income taxation matters also will be passed upon for the Company and the Trust
by Akin, Gump, Strauss, Hauer & Feld, L.L.P., Washington, D.C. Attorneys in the
Keating, Muething & Klekamp law firm hold certain Securities of the Company and
the Trust. Certain matters of Delaware law relating to the validity of the
Preferred Securities will be passed upon for the Trust by Morris, Nichols, Arsht
& Tunnell, Wilmington, Delaware.
EXPERTS
The consolidated financial statements of AFG appearing in AFG's Annual
Report (Form 10-K) for the year ended December 31, 1995, have been audited by
Ernst & Young LLP, independent auditors, as set forth in their report thereon
included therein and incorporated herein by reference. Such report is based in
part on the reports of Deloitte & Touche LLP, independent auditors, relating to
the consolidated financial statements of American Premier Underwriters, Inc. for
the years ended December 31, 1994 and 1993 and of Deloitte & Touche, independent
auditors, relating to the consolidated financial statements of General Cable
Corporation for the year ended December 31, 1993. AFG's financial statements
referred to above are incorporated herein by reference in reliance upon such
reports given upon the authority of such firms as experts in accounting and
auditing.
19
<PAGE> 22
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>
<S> <C>
Securities and Exchange Commission registration fee*............ $151,515.00
New York Stock Exchange listing fee............................. 45,000.00
Legal fees and expenses......................................... 175,000.00
Accounting fees and expenses.................................... 40,000.00
Printing and engraving expenses................................. 115,000.00
Trustee's fees and expenses..................................... 15,000.00
Rating Agencies' fees........................................... 125,000.00
Blue Sky fees and expenses...................................... 15,000.00
Miscellaneous................................................... 10,485.00
-----------
TOTAL......................................................... $692,000.00
===========
</TABLE>
- ---------------
* Actual; other expenses are estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Ohio Revised Code, Section 1701.13(E), allows indemnification by the
Registrant to any person made or threatened to be made a party to any
proceedings, other than a proceeding by or in the right of the Registrant, by
reason of the fact that he is or was a director, officer, employee or agent of
the Registrant, 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 the Registrant 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 the Registrant, 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 the Registrant unless
deemed otherwise by the court. Indemnifications are 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. The Registrant's
Code of Regulations extends such indemnification.
The Registrant maintains, at its expense, Directors and Officers Liability
and Company Reimbursement Liability Insurance. The Directors and Officers
Liability portion of such policy covers all directors and officers of the
Registrant and of the companies which are, directly or indirectly, more than 50%
owned by the Registrant. The policy provides for payment on behalf of the
directors and officers, up to the policy limits and after expenditure of a
specified deductible, of all Loss (as defined) from claims made against them
during the policy period for defined wrongful acts, which include errors,
misstatements or misleading statements, acts or omissions and neglect or breach
of duty by directors and officers in the discharge of their individual or
collective duties as such. The insurance includes the cost of investigations and
defenses, appeals and bonds and settlements and judgments, but not fines or
penalties imposed by law. The insurance does not cover any claims arising out of
acts alleged to have been committed prior to October 24, 1978. The insurer limit
of liability under the policy is $50,000,000 in the aggregate for all losses
each year subject to certain individual and aggregate deductibles. The policy
contains various exclusions and reporting requirements.
The Registrant also has entered into indemnification agreements with its
executive officers and directors providing for indemnification against certain
liabilities to the fullest extent permitted under Ohio law.
II-1
<PAGE> 23
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION OF DOCUMENT
- -------------- -----------------------
<S> <C>
1.1* Underwriting Agreement for Debt Securities
1.2* Underwriting Agreement for Common Stock
1.3* Underwriting Agreement for Preferred Securities
4.1** Articles of Incorporation of American Financial Group, Inc.
4.2** Code of Regulations of American Financial Group, Inc.
4.3 Form of Senior Indenture
4.4 Form of Subordinated Indenture
4.5* Preferred Securities Guarantee Agreement by American Financial Group, Inc.
4.6* Form of Debt Security
4.7* Form of Preferred Security
4.8* Certificate of Trust of American Financial Capital Trust II
4.9* Declaration of Trust of American Financial Capital Trust II
5.1* Opinion of Keating, Muething & Klekamp, P.L.L.
8.1* Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
23.1 Consents of Independent Auditors
23.2 Consent of Keating, Muething & Klekamp, P.L.L.
23.3 Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
23.4 Consent of Morris, Nichols, Arsht & Tunnell
24 Powers of Attorney (contained on the signature page).
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 Bank of New York, as Trustee under the Subordinated Indenture
25.3 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of Bank of New York, as Trustee under the Declaration of American
Financial Capital Trust II
25.4 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of Bank of New York, as Trustee of the Trust Preferred Securities
Guarantee for the benefit of the holders of Preferred Securities of American
Financial Capital Trust II
</TABLE>
- ---------------
* 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 Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. 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
II-2
<PAGE> 24
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.
(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
II-3
<PAGE> 25
(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
(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-4
<PAGE> 26
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 10TH DAY OF
FEBRUARY, 1997.
AMERICAN FINANCIAL GROUP, INC.
BY: 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 (*) HEREBY CONSTITUTES AND APPOINTS FRED J. RUNK, JAMES C.
KENNEDY AND KARL J. GRAFE, OR EACH OF THEM, HIS TRUE AND LAWFUL ATTORNEY AND
AGENT, TO DO ANY AND ALL ACTS AND INSTRUMENTS FOR HIM AND IN HIS NAME IN THE
CAPACITY INDICATED BELOW, WHICH SAID ATTORNEYS AND AGENTS, OR EITHER OF THEM,
MAY DEEM NECESSARY OR ADVISABLE TO ENABLE AMERICAN FINANCIAL 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
--------- -------- ----
<C> <S> <C>
* CARL H. LINDNER Chairman of the Board and Chief February 10, 1997
- ----------------------------------- Executive Officer and a Director
Carl H. Lindner
* CARL H. LINDNER III Director February 10, 1997
- -----------------------------------
Carl H. Lindner III
* S. CRAIG LINDNER Director February 10, 1997
- -----------------------------------
S. Craig Lindner
* KEITH E. LINDNER Director February 10, 1997
- -----------------------------------
Keith E. Lindner
* JAMES E. EVANS Director February 10, 1997
- -----------------------------------
James E. Evans
* THEODORE H. EMMERICH Director February 10, 1997
- -----------------------------------
Theodore H. Emmerich
* WILLIAM R. MARTIN Director February 10, 1997
- -----------------------------------
William R. Martin
FRED J. RUNK Senior Vice President and Treasurer February 10, 1997
- ----------------------------------- (Principal Financial and Accounting
Fred J. Runk Officer)
</TABLE>
II-5
<PAGE> 27
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, American
Financial Capital Trust II 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
10th day of February, 1997.
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 (*) hereby constitutes and appoints Fred J. Runk, James C.
Kennedy and Karl J. Grafe, or each of them, his true and lawful attorney and
agent, to do any and all acts and instruments for him and in his name in the
capacity indicated below, which said attorneys and agents, or either of them,
may deem necessary or advisable to enable American Financial Capital Trust II 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).
AMERICAN FINANCIAL CAPITAL TRUST II
By: * JAMES E. EVANS
------------------------------------
James E. Evans, as Trustee
By: * THOMAS E. MISCHELL
------------------------------------
Thomas E. Mischell, as Trustee
II-6
<PAGE> 1
EXHIBIT 4.3
================================================================================
AMERICAN FINANCIAL GROUP, INC.
and
STAR BANK, N.A.,
Trustee
INDENTURE
Dated as of _____________, 1997
Senior Debt Securities
================================================================================
<PAGE> 2
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION................................................1
SECTION 1.1 Definitions..............................................................................1
SECTION 1.2 Compliance Certificates and Opinions.....................................................9
SECTION 1.3 Form of Documents Delivered to Trustee..................................................10
SECTION 1.4 Acts of Holders.........................................................................10
SECTION 1.5 Notices, Etc., to Trustee and Company...................................................11
SECTION 1.6 Notice to Holders; Waiver...............................................................12
SECTION 1.7 Conflict with Trust Indenture Act.......................................................13
SECTION 1.8 Effect of Headings and Table of Contents................................................13
SECTION 1.9 Successors and Assigns..................................................................13
SECTION 1.10 Separability Clause.....................................................................13
SECTION 1.11 Benefits of Indenture...................................................................13
SECTION 1.12 Governing Law...........................................................................13
SECTION 1.13 Non-Business Day........................................................................13
SECTION 1.14 Immunity of Incorporators, Shareholders,
Officers and Directors..................................................................14
ARTICLE 2 DEBT SECURITY FORM.....................................................................................14
SECTION 2.1 Form of Debt Securities.................................................................14
SECTION 2.2 Form of Trustee's Certificate of
Authentication..........................................................................15
SECTION 2.3 Debt Securities in Global Form..........................................................16
ARTICLE 3 THE DEBT SECURITIES....................................................................................16
SECTION 3.1 Title; Payment and Terms................................................................16
SECTION 3.2 Denominations...........................................................................19
SECTION 3.3 Execution, Authentication, Delivery and
Dating..................................................................................19
SECTION 3.4 Temporary Debt Securities and Exchange of
Debt Securities.........................................................................21
SECTION 3.5 Registration, Registration of Transfer and
Exchange................................................................................22
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Debt
Securities..............................................................................25
SECTION 3.7 Payment of Interest; Interest Rights
Preserved...............................................................................26
SECTION 3.8 Persons Deemed Owners...................................................................28
SECTION 3.9 Cancellation............................................................................28
SECTION 3.10 Computation of Interest.................................................................28
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE 4 SATISFACTION AND DISCHARGE.............................................................................29
SECTION 4.1 Satisfaction and Discharge of Debt
Securities of any Series................................................................29
SECTION 4.2 Application of Trust Money..............................................................31
SECTION 4.3 Satisfaction and Discharge of Indenture.................................................32
SECTION 4.4 Reinstatement...........................................................................32
ARTICLE 5 REMEDIES...............................................................................................33
SECTION 5.1 Events of Default.......................................................................33
SECTION 5.2 Acceleration of Maturity; Rescission and
Annulment...............................................................................36
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee..................................................................37
SECTION 5.4 Trustee May File Proofs of Claim........................................................38
SECTION 5.5 Trustee May Enforce Claims Without Possession
of Debt Securities......................................................................39
SECTION 5.6 Application of Money Collected..........................................................39
SECTION 5.7 Limitation on Suits.....................................................................40
SECTION 5.8 Unconditional Right of Holders to Receive
Principal (and Premium, if any) and Interest,
if any..................................................................................41
SECTION 5.9 Restoration of Rights and Remedies......................................................41
SECTION 5.10 Rights and Remedies Cumulative..........................................................41
SECTION 5.11 Delay or Omission Not Waiver............................................................42
SECTION 5.12 Control by Holders......................................................................42
SECTION 5.13 Waiver of Past Defaults.................................................................42
SECTION 5.14 Waiver of Stay or Extension Laws........................................................43
SECTION 5.15 Undertaking for Costs...................................................................43
ARTICLE 6 THE TRUSTEE............................................................................................44
SECTION 6.1 Certain Duties and Responsibilities.....................................................44
SECTION 6.2 Notice of Defaults......................................................................45
SECTION 6.3 Certain Rights of Trustee...............................................................45
SECTION 6.4 Not Responsible for Recitals or Issuance of
Debt Securities.........................................................................46
SECTION 6.5 May Hold Debt Securities................................................................47
SECTION 6.6 Money Held in Trust.....................................................................47
SECTION 6.7 Compensation and Reimbursement..........................................................47
SECTION 6.8 Disqualification; Conflicting Interests.................................................48
SECTION 6.9 Corporate Trustee Required, Different
Trustees for Different Series; Eligibility..............................................48
</TABLE>
<PAGE> 4
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 6.10 Resignation and Removal; Appointment of
Successor...............................................................................49
SECTION 6.11 Acceptance of Appointment by Successor..................................................50
SECTION 6.12 Merger, Conversion, Consolidation or
Succession to Business..................................................................52
SECTION 6.13 Preferential Collection of Claims Against
Company.................................................................................52
SECTION 6.14 Authenticating Agents...................................................................53
ARTICLE 7 HOLDERS' REPORTS BY TRUSTEE AND COMPANY................................................................54
SECTION 7.1 Preservation of Information; Company to
Furnish Trustee Names and Addresses of Holders..........................................54
SECTION 7.2 Communications to Holders...............................................................55
SECTION 7.3 Reports by Trustee......................................................................55
SECTION 7.4 Reports by Company......................................................................55
ARTICLE 8 CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER..........................................................55
SECTION 8.1 Company May Consolidate, Etc., Only on
Certain Terms...........................................................................55
SECTION 8.2 Successor Corporation Substituted.......................................................56
ARTICLE 9 SUPPLEMENTAL INDENTURES................................................................................57
SECTION 9.1 Supplemental Indentures Without Consent of
Holders.................................................................................57
SECTION 9.2 Supplemental Indentures With Consent
of Holders..............................................................................58
SECTION 9.3 Execution of Supplemental Indentures....................................................60
SECTION 9.4 Effect of Supplemental Indentures.......................................................60
SECTION 9.5 Conformity With Trust Indenture Act.....................................................60
SECTION 9.6 Reference in Debt Securities to Supplemental
Indentures..............................................................................60
ARTICLE 10 COVENANTS.............................................................................................61
SECTION 10.1 Payment of Principal (and Premium, if any)
and Interest, if any....................................................................61
SECTION 10.2 Maintenance of Office or Agency.........................................................61
SECTION 10.3 Money for Debt Securities Payments to Be
Held in Trust...........................................................................62
SECTION 10.4 Payment of Taxes and Other Claims.......................................................64
SECTION 10.5 Maintenance of Properties...............................................................64
SECTION 10.6 Corporate Existence.....................................................................64
SECTION 10.7 Waiver of Certain Covenants.............................................................64
</TABLE>
<PAGE> 5
<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE 11 REDEMPTION OF DEBT SECURITIES.........................................................................65
SECTION 11.1 Applicability of This Article...........................................................65
SECTION 11.2 Election to Redeem; Notice to Trustee...................................................65
SECTION 11.3 Selection by Trustee of Debt Securities
to Be Redeemed..........................................................................66
SECTION 11.4 Notice of Redemption....................................................................66
SECTION 11.5 Deposit of Redemption Price.............................................................67
SECTION 11.6 Debt Securities Payable on Redemption Date..............................................67
SECTION 11.7 Debt Securities Redeemed in Part........................................................68
ARTICLE 12 SINKING FUNDS.........................................................................................68
SECTION 12.1 Applicability of This Article...........................................................68
SECTION 12.2 Satisfaction of Sinking Fund Payments With
Debt Securities.........................................................................69
SECTION 12.3 Redemption of Debt Securities for
Sinking Fund............................................................................69
</TABLE>
<PAGE> 6
AMERICAN FINANCIAL GROUP, INC.
Reconciliation and tie showing the location in the Indenture
dated as of _____________________, 1997 of the provisions inserted pursuant to
Sections 310 through 318(a), inclusive, of the Trust Indenture Act of 1939.
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture
- --------------------------- ---------
Section
-------
<S> <C> <C>
Section 310 (a)(1) 6.9
(a)(2) 6.9
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 6.8
6.10 (d)
(c) Not Applicable
Section 311 (a) 6.13
(b) 6.13
(c) Not Applicable
Section 312 (a) 7.1
(b) 7.2
(c) 7.2
Section 313 (a) 7.3
(b) 7.3
(c) 7.3
(d) 7.3
Section 314 (a) 7.4
(b) Not Applicable
(c) 1.2
(c)(1) 1.2
(c)(2) 1.2
(c)(3) 1.2
(d) Not Applicable
(e) 1.2
(f) Not Applicable
Section 315 (a) 6.1(a)
(b) 6.2
(c) 6.1(b)
(d) 6.1(c)
Section 316 (a)(1)(A) 5.2 and 5.12
(a)(1)(B) 5.13
(a)(2) Not Applicable
(b) 5.8
(c) Not Applicable
Section 317 (a)(1) 5.3
(a)(2) 5.4
(b) 10.3
Section 318 (a) 1.7
- ---------------------
<FN>
NOTE: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
</TABLE>
<PAGE> 7
This is an INDENTURE dated as of ___________, 1997, between American
Financial Group, Inc., a corporation duly incorporated and existing under the
laws of Ohio (the "Company"), 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, 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 authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company 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;
<PAGE> 8
-2-
(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 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 any
duly authorized committee of that board or any director or directors and/or
officer or officers of the Company to whom that board or committee 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 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
<PAGE> 9
-3-
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 issued 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 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 capital stock, par value $1.00 per share, of
the Company.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by (1) the Chairman
of the Board, a Vice Chairman of the Board, Chief Executive Officer, the
President, a Co-President or a Vice President and by the Treasurer, an Assistant
Treasurer, an Assistant Controller, the Secretary or an Assistant Secretary of
the Company, or (2) by any two Persons designated in a Company
<PAGE> 10
-4-
Order previously delivered to the Trustee for the Debt Securities of any series
by any two of the foregoing officers and delivered to the Trustee for the Debt
Securities of such series.
"Corporate Trust Office" means the office of the Trustee for Debt
Securities of any series at which at any particular time its corporate trust
business shall be principally administered, which as of the date of this
Indenture is located at 425 Walnut Street, Cincinnati, Ohio 45202.
"Corporation" includes corporations, associations, joint-stock and
limited liability companies and business trusts.
"Debt Securities" means securities evidencing unsecured indebtedness of
the Company authenticated and delivered under this Indenture.
"Debt Security Register" and "Debt Security Registrar" have the
respective meanings specified in Section 3.5.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Discounted Debt Security" means any Debt Security which provides for
an amount (excluding any amounts attributable to accrued but unpaid interest
thereon) less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.2.
"Dollars" and the sign "$" 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 2.3.
"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
<PAGE> 11
-5-
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.
"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 may be other counsel satisfactory to
the Trustee for the Debt Securities of any series.
<PAGE> 12
-6-
"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.
<PAGE> 13
-7-
"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 functions
similar to those performed by any of the above designated officers and
<PAGE> 14
-8-
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.
<PAGE> 15
-9-
"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.
"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
<PAGE> 16
-10-
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 Delivered to
---------------------------------------------------
Trustee.
-------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows 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
<PAGE> 17
-11-
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.
(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,
<PAGE> 18
-12-
(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.
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.
<PAGE> 19
-13-
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.
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
<PAGE> 20
-14-
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 of any successor corporation,
either directly or indirectly through the Company 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 of any successor
corporation, either directly or indirectly through the Company or any successor
corporation, because of the incurring of the indebtedness hereby authorized or
under or by reason of any of the obligations, covenants 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
<PAGE> 21
-15-
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 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, 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:
<PAGE> 22
-16-
"This is one of the Debt Securities, of the series
designated herein, described in the within-mentioned Indenture.
-----------------------------,
as Trustee
By
----------------------------
Authorized Officer"
SECTION 2.3 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 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.
<PAGE> 23
-17-
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;
(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
<PAGE> 24
-18-
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
<PAGE> 25
-19-
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 by its
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 the corporate seal of the Company 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 shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior
<PAGE> 26
-20-
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
<PAGE> 27
-21-
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 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.
<PAGE> 28
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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.
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
<PAGE> 29
-23-
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 11.4 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 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
<PAGE> 30
-24-
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
<PAGE> 31
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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
<PAGE> 32
-26-
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.
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
<PAGE> 33
-27-
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 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.
<PAGE> 34
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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.
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
<PAGE> 35
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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
<PAGE> 36
-30-
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
2under 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 3.6 (except that Debt
<PAGE> 37
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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.
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
<PAGE> 38
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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.
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.
<PAGE> 39
-33-
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 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
<PAGE> 40
-34-
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
<PAGE> 41
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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
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
<PAGE> 42
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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.
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
<PAGE> 43
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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 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
<PAGE> 44
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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
<PAGE> 45
-39-
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
<PAGE> 46
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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.
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
<PAGE> 47
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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.
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
<PAGE> 48
-42-
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.
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.
<PAGE> 49
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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> 50
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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> 51
-45-
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;
<PAGE> 52
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(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
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.
<PAGE> 53
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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.
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
<PAGE> 54
-48-
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 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.
<PAGE> 55
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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
(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
<PAGE> 56
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series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for
the removal of 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
<PAGE> 57
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request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder, subject 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
<PAGE> 58
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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.
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.
<PAGE> 59
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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 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
<PAGE> 60
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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 Officer"
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.
<PAGE> 61
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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.
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:
<PAGE> 62
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(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 named as the
<PAGE> 63
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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,
<PAGE> 64
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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
(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
<PAGE> 65
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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 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 10.8, 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 10.8, 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
<PAGE> 66
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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 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
<PAGE> 67
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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 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
<PAGE> 68
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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;
<PAGE> 69
-63-
(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.
<PAGE> 70
-64-
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.
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
<PAGE> 71
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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 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.
<PAGE> 72
-66-
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.
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,
<PAGE> 73
-67-
(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 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.
<PAGE> 74
-68-
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 62. Each
sinking fund payment shall be applied to the redemption of Debt Securities of
any particular series as provided for by the terms of Debt Securities of that
series.
<PAGE> 75
-69-
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> 76
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture dated
as of ___________, 199_ to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the ____ day of ________,
199_.
AMERICAN FINANCIAL GROUP, INC.
[SEAL]
By:_______________________________
Title:____________________________
Attest:
- -------------------------------
STAR BANK, N.A., Trustee
By:_______________________________
Title_____________________________
Attest:
- -------------------------------
<PAGE> 1
EXHIBIT 4.4
AMERICAN FINANCIAL GROUP, INC.
TO
THE BANK OF NEW YORK
a New York banking corporation, Trustee
-------------------
Indenture
Dated as of __________, 1997
_____% Subordinated Debentures
<PAGE> 2
TABLE OF CONTENTS
RECITALS OF THE COMPANY........................................................1
ARTICLE ONE - DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION..........1
SECTION 101. Definitions......................................................1
Act.........................................................................2
Affiliate...................................................................2
Authenticating Agent........................................................2
Board of Directors..........................................................2
Board Resolution............................................................2
Business Day................................................................2
Commission..................................................................3
Common Securities...........................................................3
Company.....................................................................3
Company Request.............................................................3
Corporate Trust Office......................................................3
Covenant Defeasance.........................................................3
Declaration.................................................................3
Defaulted Interest..........................................................3
Defeasance..................................................................3
Depositary..................................................................3
Event of Default............................................................3
Exchange Act................................................................3
Expense Agreement...........................................................3
Extension Period............................................................3
Global Security.............................................................3
Holder......................................................................3
Indenture...................................................................4
Institutional Trustee.......................................................4
Interest Payment Date.......................................................4
Investment Company Act Event................................................4
Maturity....................................................................4
Officers' Certificate.......................................................4
Opinion of Counsel..........................................................4
Outstanding.................................................................5
Paying Agent................................................................5
Person......................................................................5
Predecessor Security........................................................5
Preferred Securities........................................................5
Property Trustee............................................................5
Regular Record Date.........................................................5
Responsible Officer.........................................................5
Securities..................................................................5
Security Register...........................................................5
Senior Indebtedness.........................................................6
Special Event...............................................................6
<PAGE> 3
Special Record Date.........................................................6
Stated Maturity.............................................................6
Subsidiary..................................................................6
Tax Event...................................................................6
Trust.......................................................................7
Trustee.....................................................................7
Trust Indenture Act.........................................................7
U.S. Government Obligations.................................................7
Vice President..............................................................7
SECTION 102. Compliance Certificates and Opinions.............................7
SECTION 103. Form of Documents Delivered to Trustee...........................7
SECTION 104. Acts of Holders; Record Dates....................................8
SECTION 105. Notices, Etc. to Trustee and the Company.........................9
SECTION 106. Notice to Holders; Waiver........................................9
SECTION 107. Conflict with Trust Indenture Act................................9
SECTION 108. Effect of Headings and Table of Contents.........................9
SECTION 109. Separability Clause.............................................10
SECTION 110. Benefits of Indenture...........................................10
SECTION 111. Governing Law...................................................10
SECTION 112. Legal Holidays..................................................10
SECTION 113. Acknowledgment of Rights........................................10
ARTICLE TWO - SECURITY FORMS..................................................11
SECTION 201. Forms Generally.................................................11
SECTION 202. Form of Face of Security........................................11
SECTION 203. Form of Reverse of Security.....................................14
SECTION 204. Form of Trustee's Certificate of Authentication.................15
ARTICLE THREE - THE SECURITIES................................................15
SECTION 301. Title and Terms.................................................15
SECTION 302. Denominations...................................................17
SECTION 303. Execution, Authentication, Delivery and Dating..................18
SECTION 304. Temporary Securities............................................18
SECTION 305. Registration; Registration of Transfer and Exchange.............18
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities................19
SECTION 307. Payment of Interest; Interest Rights Preserved..................20
SECTION 308. Persons Deemed Owners...........................................21
SECTION 309. Cancellation....................................................21
SECTION 310. Computation of Interest.........................................21
SECTION 311. CUSIP Numbers...................................................22
SECTION 312. Global Securities...............................................22
ARTICLE FOUR - SATISFACTION AND DISCHARGE; DEFEASANCE.........................23
SECTION 401. Satisfaction and Discharge of Indenture.........................23
SECTION 402. Defeasance and Discharge........................................24
SECTION 403. Covenant Defeasance.............................................24
SECTION 404. Conditions to Defeasance or Covenant Defeasance.................25
SECTION 405. Application of Trust Money......................................26
SECTION 406. Indemnity for U.S. Government Obligations.......................26
<PAGE> 4
ARTICLE FIVE - REMEDIES.......................................................26
SECTION 501. Events of Default...............................................26
SECTION 502. Acceleration of Maturity; Rescission and Annulment..............28
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.28
SECTION 504. Trustee May File Proofs of Claim................................29
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.....29
SECTION 506. Application of Money Collected..................................29
SECTION 507. Limitation on Suits.............................................30
SECTION 508. Unconditional Right of Holders to Receive Principal and
Interest .......................................................30
SECTION 509. Restoration of Rights and Remedies..............................30
SECTION 510. Rights and Remedies Cumulative..................................30
SECTION 511. Delay or Omission Not Waiver....................................31
SECTION 512. Control by Holders..............................................31
SECTION 513. Waiver of Past Defaults.........................................31
SECTION 514. Undertaking for Costs...........................................32
SECTION 515. Waiver of Stay or Extension Laws................................32
SECTION 516. Preferred Security Holders Rights...............................32
ARTICLE SIX - TRUSTEE.........................................................32
SECTION 601. Certain Duties and Responsibilities.............................32
SECTION 602. Notice of Defaults..............................................33
SECTION 603. Certain Rights of Trustee.......................................33
SECTION 604. Not Responsible for Recitals or Issuance of Securities..........34
SECTION 605. May Hold Securities.............................................34
SECTION 606. Money Held in Trust.............................................34
SECTION 607. Compensation; Reimbursement; and Indemnity......................34
SECTION 608. Disqualification; Conflicting Interests.........................35
SECTION 609. Corporate Trustee Required; Eligibility.........................35
SECTION 610. Resignation and Removal; Appointment of Successor...............35
SECTION 611. Acceptance of Appointment by Successor..........................36
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.....37
SECTION 613. Preferential Collection of Claims Against Company...............37
ARTICLE SEVEN - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.............37
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.......37
SECTION 702. Preservation of Information; Communications to Holders..........38
SECTION 703. Reports by Trustee..............................................38
SECTION 704. Reports by Company..............................................38
ARTICLE EIGHT - CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE..........39
SECTION 801. Successor Substituted...........................................39
ARTICLE NINE - SUPPLEMENTAL INDENTURES........................................39
SECTION 901. Supplemental Indentures Without Consent of Holders..............39
SECTION 902. Supplemental Indentures with Consent of Holders.................39
SECTION 903. Execution of Supplemental Indentures............................40
SECTION 904. Effect of Supplemental Indentures...............................40
SECTION 905. Conformity with Trust Indenture Act.............................41
SECTION 906. Reference in Securities to Supplemental Indentures..............41
<PAGE> 5
ARTICLE TEN - COVENANTS; REPRESENTATIONS AND WARRANTIES.......................41
SECTION 1001. Payment of Principal and Interest..............................41
SECTION 1002. Maintenance of Office or Agency................................41
SECTION 1003. Money for Security Payments to Be Held in Trust................41
SECTION 1004. Statement by Officers as to Default............................42
SECTION 1005. Existence......................................................42
SECTION 1006. Maintenance of Properties......................................43
SECTION 1007. Payment of Taxes and Other Claims..............................43
SECTION 1008. Additional Covenants...........................................43
SECTION 1009. Waiver of Certain Covenants....................................43
ARTICLE ELEVEN - SUBORDINATION OF SECURITIES..................................44
SECTION 1101. Securities Subordinate to Senior Indebtedness..................44
SECTION 1102. Default on Senior Indebtedness.................................44
SECTION 1103. Liquidation; Dissolution; Bankruptcy...........................44
SECTION 1104. Subrogation....................................................46
SECTION 1105. Trustee to Effectuate Subordination............................47
SECTION 1106. Notice by the Company..........................................47
SECTION 1107. Rights of the Trustee; Holders of Senior Indebtedness..........47
SECTION 1108. Subordination May Not be Impaired..............................48
<PAGE> 6
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
- ------------------- -----------
Section 310(a)(1)....................................... 609
(a)(2)............................................. 609
(a)(3)............................................. Not Applicable
(a)(4)............................................. Not Applicable
(b) ............................................... 608, 610
Section 311(a).......................................... 613
(b) .............................................. 613
Section 312(a).......................................... 701
(b) .............................................. 702(b)
(c) ............................................... 702(c)
Section 313(a).......................................... 703(a)
(a)(4)............................................. 101, 1004
(b) ............................................... 703(a)
(c) ............................................... 703(a)
(d) ............................................... 703(b)
Section 314(a).......................................... 704
(b) ............................................... Not Applicable
(c)(1)............................................. 102
(c)(2)............................................. 102
(c)(3)............................................. Not Applicable
(d) ............................................... Not Applicable
(e) ............................................... 102
Section 315(a).......................................... 601
(b) ............................................... 602
(c) ............................................... 601
(d) ............................................... 601
(e) ............................................... 514
Section 316(a).......................................... 101
(a)(1)(A).......................................... 502
(a)(1)(B).......................................... 513
(a)(2)............................................. Not Applicable
(b) ............................................... 508
(c) ............................................... 104(c)
Section 317(a)(1)...................................... 503
(a)(2)............................................. 504
(b) ............................................... 1003
Section 318(a)......................................... 107
-viii-
<PAGE> 7
This INDENTURE is dated as of __________, 1997, between American
Financial Group, Inc., a corporation duly organized and existing under the laws
of the State of Ohio (herein called the "Company"), having its principal office
at One East Fourth Street, Cincinnati, Ohio 45202, and The Bank of New York, a
New York banking corporation, as Trustee (herein called the "Trustee"). Unless
otherwise defined herein, all capitalized items used herein shall have the
meanings ascribed to them in the Amended and Restated Declaration of Trust
between the Company, as Depositor, and The Bank of New York, The Bank of New
York (Delaware), _____________________________________, as trustees, dated as of
______________, (the "Declaration"), as in effect on the date hereof, and which
is incorporated herein by reference.
RECITALS OF THE COMPANY
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of its _____% Subordinated Debentures due _____ (the "Securities").
WHEREAS, American Financial Capital Trust II (the "Trust") has offered
to the public $___________ aggregate liquidation amount (subject to increase up
to a maximum of $___________ in the event that the over-allotment option
provided for in the Underwriting Agreement dated _______________, among the
Company, the Trust and the several underwriters named therein is exercised) of
its _____% Trust Originated Preferred Securities (the "Preferred Securities")
representing undivided beneficial interests in the assets of the Trust and
proposes to invest the proceeds from such offering in Securities.
WHEREAS, to provide the terms and conditions upon which the Securities
are to be authenticated, issued and delivered, the Company has duly authorized
the execution of this Indenture.
WHEREAS, all things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holder thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
<PAGE> 8
(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;
(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;
(5) a reference to any Person shall include its successors and assigns;
(6) a reference to any agreement or instrument shall mean such
agreement or instrument as supplemented, modified, amended or restated and in
effect from time to time;
(7) a reference to any statute, law, rule or regulation, shall include
any amendments thereto applicable to the relevant Person, and any successor
statute, law, rule or regulation; and
(8) a reference to any particular rating category shall be deemed to
include any corresponding successor category, or any corresponding rating
category issued by a successor or subsequent rating agency.
"Act," when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Securities.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board, as the context requires.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day other than a Saturday or Sunday or a day
on which banking institutions in The City of New York are authorized or required
by law or executive order to remain closed or a day on which the Corporate Trust
Office of the Trustee, or the principal corporate trust office of the Property
Trustee, under the Trust Agreement, is closed for business.
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<PAGE> 9
"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 at such time.
"Common Securities" means the common securities issued by the Trust.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, a President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
"Corporate Trust Office" means the principal office of the Trustee in
The City of New York, at which at any particular time its corporate trust
business shall be administered and which at the date of this Indenture is The
Bank of New York, 101 Barclay Street, Floor 21 West, New York, New York 10286.
"Covenant Defeasance" has the meaning specified in Section 403.
"Declaration" has the meaning specified in the Recitals.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 402.
"Depositary" means, with respect to Securities issuable in whole or in
part in the form of one or more Global Securities, a clearing agency registered
under the Exchange Act that is designated to act as Depositary for such
Securities.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor legislation.
"Expense Agreement" means the Expense Agreement contemplated by Section
607.
"Extension Period" has the meaning specified in Section 301.
"Global Security" means a Security that evidences all or part of the
Securities and is authenticated and delivered to, and registered in the name of,
the Depositary for such Securities or a nominee thereof.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
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"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Institutional Trustee" has the meaning set forth in the Declaration.
"Interest Payment Date," when used with respect to any installment of
interest on a Security, means the date specified in such Security as the fixed
date on which an installment of interest with respect to the Securities is due
and payable.
"Investment Company Event" means that the Trust shall have received an
Opinion of Counsel from independent counsel experienced in practice under the
Investment Company Act of 1940, as amended (the "1940 Act"), to the effect that,
as a result of the occurrence of a change in law or regulation or a change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change in 1940 Act Law"),
there is more than an insubstantial risk that the Trust is or will be considered
an "investment company" which is required to be registered under the 1940 Act,
which Change in 1940 Act Law becomes effective on or after the date of original
issuance of the Preferred Securities.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed on behalf of the
Company by the Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Company, and delivered to the
Trustee. One of the officers signing an Officers' Certificate given pursuant to
Section 1004 shall be the principal executive, financial or accounting officer
of the Company. Any Officers' Certificate delivered with respect to compliance
with a condition or covenant provided for in this Indenture shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement on behalf of the Company as to whether, in the opinion
of each such officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company (and who may be an employee of the Company), and who
shall be reasonably acceptable to the Trustee. An opinion of counsel may rely on
certificates as to matters of fact.
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"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities authenticated and delivered under this
Indenture, except: (i) Securities cancelled by the Trustee or delivered to the
Trustee for cancellation; (ii) Securities for whose payment or redemption money
in the necessary amount has been deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holder of
such Securities; provided that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and (iii) Securities which
have been paid pursuant to Section 306, or in exchange for or in lieu of which
other Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such Securities are
held by a bona fide purchaser in whose hands such Securities are valid
obligations of the Company.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Securities" has the meaning specified in the Recitals to
this instrument.
"Property Trustee" shall have the meaning set forth in the Declaration.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the Business Day next preceding such Interest Payment Date or, if the
Securities are no longer in the form prescribed by Section 313, the date
selected by the Company which shall be more than one Business Day but less than
60 Business Days prior to the relevant Interest Payment Date.
"Responsible Officer," when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, any trust officer
or assistant trust officer, the controller or any assistant controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Securities" has the meaning specified in the Recitals to this
instrument.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
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"Senior Indebtedness" means, with respect to the Company, (i) the
principal, premium, if any, and interest in respect of (A) indebtedness of the
Company for money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds or other similar instruments issued by the Company, (ii) all
capital lease obligations of the Company, (iii) all obligations of the Company
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of the Company and all obligations of the Company under any
title retention agreement (but excluding trade accounts payable arising in the
ordinary course of business), (iv) all obligations of the Company 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
the Company 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 the Company
(whether or not such obligation is assumed by the Company), except in each case
for (1) any such indebtedness that is by its terms subordinated to or pari passu
with the 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 that is a financing entity of the Company (a
"financing entity") in connection with the issuance by such financing entity of
securities that are similar to the Preferred 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.
"Special Event" means either an Investment Company Event or a Tax
Event.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the date on which the principal, together with any accrued and unpaid interest,
of such Security or such installment of interest is due and payable (whether the
initial such date or, if pursuant to Section 301 the Company elects to extend
the Stated Maturity, such later date as is chosen by the Company pursuant to
Section 301).
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Tax Event" means the receipt by the Trust of an Opinion of Counsel
from independent counsel experienced in such matters to the effect that, as a
result of (a) any amendment to, or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, or (b) any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
such pronouncement or decision is announced on or after the date of original
issuance of the Preferred Securities, there is more than an insubstantial risk
that (i) the Trust is, or will be within 90 days after the date thereof, subject
to United States federal income tax with respect to interest accrued or received
on the Securities, (ii) the Trust is, or will be within 90 days after the date
thereof, subject to more than a de minimis amount of other taxes, duties or
other governmental charges, or (iii) interest payable to the Trust on the
Securities is not, or within 90 days
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<PAGE> 13
of the date thereof, will not be deductible, in whole or in part, by the
Company for United States federal income tax purposes.
"Trust" means the statutory business trust, American Financial Capital
Trust II, declared and established pursuant to the Delaware Business Trust Act
by the Declaration.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"U.S. Government Obligations" has the meaning specified in Section 404.
"Vice President," when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirement set forth in
this Indenture.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee at the address specified in Section 105 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 shall
be sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of the
most recent list of Holders required to be provided pursuant to Section 701)
prior to such first solicitation or vote, as the case may be.
With regard to any record date, only the Holders on such date (or their
duly designated proxies) shall be entitled to give or take, or vote on, the
relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
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SECTION 105. NOTICES, ETC. TO TRUSTEE AND THE COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with:
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or with
the Trustee at its Corporate Trust Office, Attention: Corporate Trust Trustee
Administration; or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to it
at the address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee by the Company.
SECTION 106. 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)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
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 by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the provision of the Trust Indenture Act shall control.
If any provision of this Indenture modifies or excludes any provision of the
Trust Indenture Act that may be so modified or excluded, the latter provision
shall be deemed to apply to this Indenture as so modified or to be excluded, as
the case may be.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
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SECTION 109. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 110. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Indebtedness, the holders of Preferred
Securities (to the extent provided herein) and the Holders of Securities, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF __________, WITHOUT REGARD TO CONFLICTS
OF LAW PRINCIPLES THEREOF. THIS INDENTURE IS SUBJECT TO THE PROVISIONS OF THE
TRUST INDENTURE ACT THAT ARE REQUIRED TO BE PART OF THIS INDENTURE AND SHALL, TO
THE EXTENT APPLICABLE, BE GOVERNED BY SUCH PROVISIONS.
SECTION 112. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of interest or
principal of the Securities need not be made on such date, but may be made on
the next succeeding Business Day (except that, if such Business Day is in the
next succeeding calendar year, such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be, shall be the immediately preceding Business
Day) 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 113. ACKNOWLEDGMENT OF RIGHTS.
The Company acknowledges that, with respect to any Securities held by
the Trust or a trustee of such Trust, if the Property Trustee of such Trust
fails to enforce its rights under this Indenture as the holder of the Securities
held as the assets of the Trust, any holder of Preferred Securities may
institute legal proceedings directly against the Company to enforce such
Property Trustee's rights under this Indenture without first instituting any
legal proceedings against such Property Trustee or any other person or entity.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Company to pay
interest, principal or other required payment on the Securities on the date such
interest, principal or other required payment is otherwise payable, the Company
acknowledges that a holder of Preferred Securities may directly institute a
proceeding for enforcement of payment to such holder of the principal, interest
or other required payment on the Securities having a principal amount equal to
the aggregate liquidation amount of the Preferred Securities of such holder on
or after the respective due date specified in the Securities.
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ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Securities and the Trustee's certificates of authentication shall
be in substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these or other methods, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
SECTION 202. FORM OF FACE OF SECURITY.
AMERICAN FINANCIAL GROUP, INC.
_____% Subordinated Debenture, Due ________________
$_________
No.______
CUSIP No. _____________
AMERICAN FINANCIAL GROUP, INC., a corporation duly organized and
existing under the laws of the State of Ohio (herein called the "Company", which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to
______________________________, or registered assigns, the principal sum of
________ DOLLARS ($_____) on ________________, and to pay interest on said
principal sum from ________________ or from the most recent interest payment
date (each such date, an "Interest Payment Date") to which interest has been
paid or duly provided for, quarterly (subject to deferral as set forth herein)
in arrears on January 15, April 15, July 15 and October 15 of each year,
commencing __________, 1997, at the rate of _____% per annum until the principal
hereof shall have become due and payable, and on any overdue principal and
(without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
same rate per annum. The amount of interest payable for any period will be
computed on the basis of twelve 30-day months and a 360-day year. The amount of
interest payable for any period shorter than a full quarterly period for which
interest is computed, will be computed on the basis of actual number of days
elapsed in such 90-day quarter. In the event that any date on which interest is
payable on this Security is not a Business Day, then a payment of the interest
payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on the date the payment was originally
payable. A "Business Day" shall mean any day other than a day on which banking
institutions in The City of New York are authorized or required by law or
executive order to remain closed or a day on which the Corporate Trust Office of
the Trustee, or the principal
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corporate trust office of the Property Trustee under the Trust Agreement, is
closed for business. The interest installment so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name the Securities (or one or more
Predecessor Securities, as defined in the Indenture) is registered at the close
of business on the Regular Record Date for such interest installment, which
shall be the close of business on the Business Day next preceding such Interest
Payment Date. Any such interest installment not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name the Securities
(or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
The Company shall have the right at any time during the term of this
Security, from time to time, to defer payment of interest on such Security for
up to 20 consecutive quarters (an "Extension Period"), provided that no
Extension Period may extend past the Maturity of this Security. There may be
multiple Extension Periods of varying lengths during the term of this Security.
At the end of each Extension Period, if any, the Company shall pay all interest
then accrued and unpaid, together with interest thereon, compounded quarterly at
the rate specified on this Security to the extent permitted by applicable law;
provided that during any such Extension Period, (a) the Company shall not
declare or pay any dividends on, or make a distribution with respect to, or
redeem, purchase or acquire, or make a liquidation payment with respect to, any
of its capital stock (other than (i) repurchases or acquisitions of shares of
the Common Stock of the Company as contemplated by any employment arrangement,
benefit plan or other similar contract with or for the benefit of employees,
officers or directors entered into in the ordinary course of business, (ii) as a
result of an exchange or conversion of any class or series of the Company's
capital stock for the Company's Common Stock, (iii) the purchase of fractional
interests in shares of the Company's capital stock pursuant to the conversion or
exchange provisions of such Company capital stock or the security being
converted or exchanged, or (iv) the payment of any stock dividend by the Company
payable in the Company's Common Stock) and (b) the Company shall not directly or
indirectly, and shall not allow any of its Subsidiaries to, make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities issued by the Company that rank pari passu with or junior to
this Security. Prior to the termination of any such Extension Period, the
Company may further defer payments of interest by extending the payment period,
provided that such Extension Period together with all such previous and further
extensions thereof shall not exceed 20 consecutive quarters or extend beyond the
Maturity of this Security. Upon the termination of any such Extension Period and
upon the payment of all accrued and unpaid interest then due, the Company may
select a new Extension Period, subject to the above requirements. No interest
shall be due and payable during an Extension Period, except at the end thereof.
The Company shall give the Trustee notice of its selection of an Extension
Period at least one Business Day prior to the earlier of (i) the Interest
Payment Date or (ii) the date the Trust is required to give notice to the New
York Stock Exchange (or other applicable self-regulatory organization) or to
holders of the Preferred Securities of the record date or the date such
distributions are payable, but in any event not less than one Business Day prior
to such record date.
Payment of the principal of and interest on this Security will be made
at the office or agency of the Paying Agent maintained for that purpose in the
United States, in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private
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<PAGE> 19
debts; provided, however, that at the option of the Company, payment of interest
may be made (i) by check mailed to the address of the Person entitled thereto at
such address as shall appear in the Security Register or (ii) by wire transfer
in immediately available funds at such place and to such account as may be
designated in writing prior to the Regular Record Date by the Person entitled
thereto as specified in the Security Register.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes. Each Holder hereof, by his acceptance hereof, waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Indebtedness, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of the Indenture
summarized on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, American Financial Group, Inc. has caused this
instrument to be duly executed under its corporate seal.
AMERICAN FINANCIAL GROUP, INC.
By:
---------------------------
Name:
Title:
[SEAL]
Attest:
- -------------------------------------
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<PAGE> 20
SECTION 203. FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of Securities of
American Financial Group, Inc. (the "Company"), designated as its _____%
Subordinated Debentures, due ________________ (herein called the "Securities"),
issued under an Indenture, dated as of ________________ (herein called the
"Indenture"), between the Company and The Bank of New York, a New York banking
corporation, as Trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Trustee,
the Company and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
All terms used in this Security which are defined in the Indenture or
in the Declaration attached as Annex A thereto shall have the meanings assigned
to them in the Indenture or the Declaration, as the case may be.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of Holders of not less than a majority in principal
amount of the Outstanding Securities affected by such modification, to modify
the Indenture in a manner affecting the rights of the Holders of the Securities;
provided that no such modification may, without the consent of the Holder of
each Outstanding Security affected thereby, (i) except to the extent permitted
and subject to the conditions set forth in the Indenture with respect to the
extension of the Maturity of the Security, change the maturity of, the principal
of, or any installment of interest on, the Security or reduce the principal
amount thereof, or the rate of payment of interest thereon, or change the place
of payment where, or the coin or currency in which, this Security or interest
thereon is payable, or impair the right to institute suit for the enforcement of
such payment on or after the Maturity thereof (or, in the case of redemption, on
or after the Redemption Date), or modify the provisions of the Indenture with
respect to the subordination of the Securities in a manner adverse to the
Holders, (ii) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for such supplemental
Indenture or the consent of whose Holders is required for any waiver [of
compliance with certain provisions of the Indenture or certain defaults
hereunder and their consequences] provided for in the Indenture, or (iii) modify
any of the provisions of Section 513, Section 903 or Section 1009 of the
Indenture, except to increase any such percentage or to provide that certain
other provisions of the Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby; provided,
that, so long as any of the Preferred Securities remains outstanding, no such
amendment shall be made that adversely affects the holders of the Preferred
Securities, and no termination of the Indenture shall occur, and no waiver of an
Event of Default or compliance with any covenant under this Indenture shall be
effective, without the prior consent of the holders of at least a majority of
the aggregate liquidation preference of the outstanding Preferred Securities
unless and until the principal of and any premium on the Securities and all
accrued and unpaid interest thereon have been paid in full.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in New York, New York, duly endorsed by, or
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<PAGE> 21
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees. No service charge shall be
made for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Securities are issuable only in registered form without coupons in
denominations of $25 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Securities
are exchangeable for a like aggregate principal amount of Securities of a
different authorized denomination, as requested by the Holder surrendering the
same.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF __________ WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES THEREOF.
SECTION 204. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated: ____________________________
THE BANK OF NEW YORK,
as Trustee
By:
---------------------------------
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 301. TITLE AND TERMS.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The securities may be issued up
to the aggregate principal amount authorized by or pursuant to a Board
Resolution.
The Securities shall be known and designated as the "_____%
Subordinated Debentures, Due ________________" of the Company. Their initial
Stated Maturity shall be ________________. Not less than ________ (__) days
prior to the initial Stated Maturity, the Company may, in its sole discretion,
extend the Stated Maturity no more than one time for one or more periods, but in
no event later than the earlier of (i) ________________ or (ii) the Interest
Deduction Date. The "Interest
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<PAGE> 22
Deduction Date" shall mean the date which is six months earlier than the ending
of the maximum term (beginning on the date of issue of the Securities and
including any extensions thereof), as determined under any federal statute
applicable by its terms to the Securities which is enacted at any time after the
issuance of the Securities (including, but not limited to, at any time after an
extension of the Stated Maturity), of a debt instrument for which interest is
deductible for federal income tax purposes. In no event shall the extended
Stated Maturity be later than the Interest Deduction Date even if the Stated
Maturity has previously been extended to a date beyond the Interest Deduction
Date up to an additional 19 years from the initial Maturity Date, provided that
all of the following conditions are satisfied at the time the Company elects to
extend the stated maturity: (i) the Company is not in bankruptcy or otherwise
insolvent, (ii) the Company is not in default in the payment of any interest or
principal on any Security issued to the Trust or to any Trustee of the Trust in
connection with an issuance of Preferred Securities or Common Securities by the
Trust, (iii) the Company has made timely payments on the Securities for the
immediately preceding six quarters without deferrals, (iv) the Trust is not in
arrears on payments of distributions on the Preferred Securities or Common
Securities of the Trust, (v) the Securities or Preferred Securities are rated
investment grade by any one of Standard & Poors Ratings Services, Moody's
Investors Service, Inc., Fitch Investor Services, Duff & Phelps Credit Rating
Company or any other nationally recognized statistical rating organization, and
(vi) the extended Stated Maturity is no later than the 49th anniversary of the
issuance of the Preferred Securities.
In addition, if the Company exercises its right to liquidate the Trust
and distribute the Securities effective upon such exercise, the Maturity of the
Securities may be changed to (i) any date elected by the Company that is no
earlier than ________________ and (ii) any date elected by the Company which is
not later than the earlier of (a) ________________ or (b) the Interest Deduction
Date; provided that on the date the Company exercises such right, and on the
Maturity in effect prior to such proposed extension, the conditions specified in
the previous paragraph are satisfied.
The Securities shall bear interest at the rate of _____% per annum,
from ________________ or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, as the case may be, payable
quarterly (subject to deferral as set forth herein), in arrears, on January 15,
April 15, July 15 and October 15 of each year, commencing ________________ until
the principal thereof is paid or made available for payment. Interest will
compound quarterly and will accrue at the rate of _____% per annum on any
interest installment in arrears for more than one quarter. In the event that any
date on which interest is payable on the Securities is not a Business Day, then
a payment of the interest payable on such date will be made on the next
succeeding day which is a Business Day (except that, if such Business Day is in
the next succeeding calendar year, such Interest Payment Date shall be the
immediately preceding Business Day) (and without any interest or other payment
in respect of any such delay).
The Company shall have the right, at any time during the term of the
Securities, from time to time, to defer payment of interest on such Security for
up to 20 consecutive quarters (an "Extension Period") provided that no Extension
Period may extend past the Maturity of the Security. There may be multiple
Extension Periods of varying lengths during the term of the Securities. At the
end of each Extension Period, if any, the Company shall pay all interest then
accrued and unpaid, together with interest thereon, compounded quarterly at the
rate specified on this Security to the extent permitted by applicable law;
provided, that during any such Extension Period, (a) the Company shall not
declare or pay any dividends on or make a distribution with respect to, or
redeem, purchase or acquire, or make a liquidation payment with respect to, any
of its capital stock (other than (i) repurchases or acquisitions of shares of
the Common Stock of the Company as contemplated by any employment arrangement,
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<PAGE> 23
benefit plan or other similar contract with or for the benefit of employees,
officers or directors entered into in the ordinary course of business, (ii) as a
result of an exchange or conversion of any class or series of the Company's
capital stock for the Company's Common Stock, (iii) the purchase of fractional
interests in shares of the Company's capital stock pursuant to the conversion or
exchange provisions of such Company capital stock or the security being
converted or exchanged, or (iv) the payment of any stock dividend by the Company
payable in the Company's Common Stock) and (b) the Company shall not, directly
or indirectly, and shall not allow any of its Subsidiaries to, make any payment
of interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities issued by the Company that rank pari passu with or junior to
this Security. Prior to the termination of any such Extension Period, the
Company may further defer payments of interest by extending the interest payment
period; provided, however, that such Extension Period together with all such
previous and further extensions thereof shall not exceed 20 consecutive quarters
or extend beyond the Maturity of this Security. Upon the termination of any such
Extension Period and upon the payment of all accrued and unpaid interest then
due, the Company may commence a new Extension Period, subject to the above
requirements. No interest shall be due and payable during an Extension Period,
except at the end thereof. If the Property Trust or the Trust is the sole holder
of the Securities, the Company shall give the Regular Trustee and the Property
Trustee notice of its selection of such Extension Period at least one Business
Day prior to the earlier of (i) the date distributions on the Preferred
Securities are payable or (ii) the date the Trust is required to give notice to
the New York Stock Exchange or (other applicable self-regulatory organization)
or to holders of the Preferred Securities of the record date or the date such
distribution is payable. If the Trust is not the sole holder of the Securities,
the Company shall give the holders of the Securities notice of its selection of
such Extension Period ten Business Days prior to the earlier of (i) the
applicable Interest Payment Date or (ii) the date the Trust is required to give
notice to the New York Stock Exchange (or other applicable self-regulatory
organization) or to holders of the Preferred Securities of the record date.
The Trustee shall promptly give notice of the Company's selection of
such Extension Period to the holders of the Preferred Securities.
The principal of and interest on the Securities shall be payable at the
office or agency of the Paying Agent in the United States maintained for such
purpose and at any other office or agency maintained by the Company for such
purpose in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts; provided,
however, that at the option of the Company payment of interest may be made (i)
by check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register or (ii) by wire transfer in immediately
available funds at such place and to such account as may be designated in
writing prior to the Regular Record Date by the Person entitled thereto as
specified in the Security Register.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Eleven.
SECTION 302. DENOMINATIONS.
The Securities shall be issuable only in registered form, without
coupons, and only in denominations of $___ and any integral multiple thereof.
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<PAGE> 24
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, a President or one of its
Vice Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and make available for delivery such
Securities as in this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and make
available for delivery, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and make
available for delivery in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 305. REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
collectively referred to as the "Security Register") in which, subject to
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<PAGE> 25
such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 1002 for such
purpose, the Company shall execute, and the Trustee shall authenticate and make
available for delivery, in the name of the designated transferee or transferees,
one or more new Securities of any authorized denominations and of a like
aggregate principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Sections 304, 906 or 1208 not involving any transfer.
If the Securities are to be redeemed in part, the Company shall not be
required (A) to issue, register the transfer of or exchange any Securities
during a period beginning at the opening of business 15 days before the day of
the mailing of a notice of redemption of any such Securities selected for
redemption under Section 1203 and ending at the close of business on the day of
such mailing, or (B) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and make available for delivery
in exchange therefor a new Security of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and make
available for delivery, in lieu of
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<PAGE> 26
any such destroyed, lost or stolen Security, a new Security of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior
to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name and at
the expense of the Company, shall cause notice of the proposed payment of such
Defaulted
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<PAGE> 27
Interest and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder at his address as it appears in the Security Register,
not less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Securities (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and, if so listed, upon such notice as
may be required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee. Subject to the foregoing provisions
of this Section, each Security delivered under this Indenture upon registration
of transfer of or in exchange for or in lieu of any other Security shall carry
the rights to interest accrued and unpaid, and to accrue which were carried by
such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee shall treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and (subject to
Section 307) interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee shall be disposed of as directed by a Company Order, provided,
however, that the Trustee may, but shall not be required to, destroy such
cancelled Securities.
SECTION 310. COMPUTATION OF INTEREST.
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months. The amount of interest payable for any period
shorter than a full quarterly period for which interest is computed will be
computed on the basis of actual number of days elapsed in such 90-day quarter.
In the event that any date on which interest is payable on the Securities is not
a Business Day, then payment of the interest payable on such date will be made
on the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay), except that, if such Business Day
is in the next succeeding calendar year, then such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date.
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SECTION 311. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the CUSIP numbers.
SECTION 312. GLOBAL SECURITIES.
If the Securities are distributed to holders of Preferred Securities in
liquidation of such holder's interests in the Trust, such Securities will
initially be issued as a Global Security. If the Company shall establish that
the Securities are to be issued in the form of one or more Global Securities,
then the Company shall execute and the Trustee shall, in accordance with Section
303 and the Company Order, authenticate and make available for delivery one or
more Global Securities that (i) shall represent and shall be denominated in an
amount equal to the aggregate principal amount of all of the Securities to be
issued in the form of Global Securities and not yet cancelled, (ii) shall be
registered in the name of the Depositary for such Global Security or Securities
or the nominee of such Depositary, and (iii) shall be delivered by the Trustee
to such Depositary or pursuant to such Depositary's instructions. Global
Securities shall bear a legend substantially to the following effect:
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Global Security is exchangeable for Securities
registered in the name of a Person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture, and no transfer of this
Security (other than a transfer of this Security 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) may be registered except in such limited
circumstances. Every Security delivered upon registration of transfer of, or in
exchange for, or in lieu of, this Global Security shall be a Global Security
subject to the foregoing, except in the limited circumstances described above.
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is to be made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein. Notwithstanding the provisions of
Section 305, unless and until it is exchanged in whole or in part for Securities
in definitive registered form, a Global Security representing all or a part of
the Securities may not be transferred in the manner provided in Section 305
except as a whole by the Depositary to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary.
If at any time the Depositary for any Securities represented by one or
more Global Securities notifies the Company that it is unwilling or unable to
continue as Depositary for such Securities or if at any time the Depositary for
such Securities shall no longer be eligible under this Section 312, the
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Company shall appoint a successor Depositary with respect to such Securities. If
a successor Depositary for such Securities is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
ineligibility, the Company's election that such Securities be represented by one
or more Global Securities shall no longer be effective and the Company shall
execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of definitive Securities, will authenticate and make available for
delivery Securities in definitive registered form, in denominations of $25 and
integral multiples thereof, in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such
Securities in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine that
the Securities issued in the form of one or more Global Securities shall no
longer be represented by a Global Security or Securities. In such event the
Company shall execute, and the Trustee, upon receipt of a Company Order or an
Officers' Certificate for the authentication and delivery of definitive
Securities, shall authenticate and make available for delivery, Securities in
definitive registered form, in denominations, of $25 and integral multiples
thereof, in an aggregate principal amount equal to the principal amount of the
Global Security or Securities representing such Securities, in exchange for such
Global Security or Securities.
If specified by the Company with respect to Securities represented by a
Global Security, the Depositary for such Global Security may surrender such
Global Security in exchange in whole or in part for Securities in definitive
registered form on such terms as are acceptable to the Company and such
Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, without service charge, (i) to the
Person specified by such Depositary, a new Security or Securities, of any
authorized denominations 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 such Depositary a new Global Security in a
denomination equal to the difference, if any, between the principal amount of
the surrendered Global Security and the aggregate principal amount of Securities
authenticated and delivered pursuant to clause (i) above. Upon the exchange of a
Global Security for Securities in definitive registered form in authorized
denominations, such Global Security shall be cancelled by the Trustee or an
agent of the Company or the Trustee. Securities in definitive registered form
issued in exchange for a Global Security pursuant to this Section 312 shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the Company
or the Trustee. The Trustee or such agent shall deliver at its office such
Securities to or as directed by the Persons in whose names such Securities are
so registered.
ARTICLE FOUR
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, on written demand of and at the
expense of the Company, shall execute instruments supplied by the Company
acknowledging satisfaction and discharge of this Indenture, when (1) either (A)
all Securities
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theretofore authenticated and delivered (other than (i) Securities which have
been destroyed, lost or stolen and which have been replaced or paid as provided
in Section 306 and (ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in Section
1003) have been delivered to the Trustee for cancellation; or (B) all such
Securities not theretofore delivered to the Trustee for cancellation (i) have
become due and payable, or (ii) will become due and payable at their Stated
Maturity within one year, or (iii) if redeemable at the option of the Company,
are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company and the Company, in the case of (i),
(ii) or (iii) above, has deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal and interest to the date of such deposit
(in the case of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be; (2) the Company has paid or
caused to be paid all other sums payable hereunder by the Company; and (3) the
Company has delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. DEFEASANCE AND DISCHARGE.
The following provisions shall apply to the Securities unless
specifically otherwise provided in a Board Resolution, Officers' Certificate or
indenture supplemental hereto provided pursuant to Section 301. In addition to
discharge of this Indenture pursuant to Sections 401 and 403, in the case of any
Securities with respect to which the exact amount described in subparagraph (a)
of Section 404 can be determined at the time of making the deposit referred to
in such subparagraph (a), the Company shall be deemed to have paid and
discharged the entire indebtedness on all the Securities as provided in this
Section on and after the date the conditions set forth in Section 404 are
satisfied, and the provisions of this Indenture with respect to the Securities
shall no longer be in effect (except as to (i) rights of registration of
transfer and exchange of Securities, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities, (iii) rights of Holders of Securities to
receive, solely from the trust fund described in subparagraph (a) of Section
404, payments of principal thereof and interest, if any, thereon upon the
original stated due dates therefor (but not upon acceleration), (iv) the rights,
obligations, duties and immunities of the Trustee hereunder, (v) this Section
402 and (vi) the rights of the Holders of Securities as beneficiaries hereof
with respect to the property so deposited with the Trustee payable to all or any
of them) (hereinafter called "Defeasance"), and the Trustee at the cost and
expense of the Company, shall execute proper instruments acknowledging the same.
SECTION 403. COVENANT DEFEASANCE.
In the case of any Securities with respect to which the exact amount
described in subparagraph (a) of Section 404 can be determined at the time of
making the deposit referred to in such subparagraph (a), (A) the Company shall
be released from its obligations under any covenants specified in or pursuant to
this Indenture (except as to (i) rights of registration of transfer and exchange
of Securities, (ii) substitution of mutilated, defaced, destroyed, lost or
stolen Securities, (iii) rights of Holders of Securities to receive, from the
Company pursuant to Section 1001, payments of principal thereof and
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interest, if any, thereon upon the original stated due dates therefor (but not
upon acceleration), (iv) the rights, obligations, duties and immunities of the
Trustee hereunder and (v) the rights of the Holders of Securities as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them), and (B) the occurrence of any event specified in
Section 501(3) (with respect to any of the covenants specified in or pursuant to
this Indenture) shall be deemed not to be or result in an Event of Default, in
each case with respect to the Outstanding Securities as provided in this Section
on and after the date the conditions set forth in Section 404 are satisfied
(hereinafter called "Covenant Defeasance"), and the Trustee, at the cost and
expense of the Company, shall execute proper instruments acknowledging the same.
For this purpose, such Covenant Defeasance means that the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant (to the extent so specified in the
case of Section 501(4)), whether directly or indirectly by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document, but
the remainder of this Indenture and the Securities shall be unaffected thereby.
SECTION 404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section
402 or 403 to the Outstanding Securities:
(a) with reference to Section 402 or 403, the Company has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as funds in
trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of Securities (i) cash in an amount, (ii) direct
obligations of the United States of America, backed by its full faith and credit
("U.S. Government Obligations"), maturing as to principal and interest, if any,
at such times and in such amounts as will insure the availability of cash, (iii)
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, or (iv) a combination thereof, in each case sufficient, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge the principal of and interest, if any, on all Securities on each
date that such principal or interest, if any, is due and payable;
(b) in the case of Defeasance under Section 402, the Company has
delivered to the Trustee an Opinion of Counsel based on the fact that (x) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling or (y), since the date hereof, there has been a change in the
applicable United States federal income tax law, in either case to the effect
that, and such opinion shall confirm that, the Holders of the Securities of such
series will not recognize income, gain or loss for federal income tax purposes
as a result of such deposit, Defeasance and discharge and will be subject to
federal income tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit, Defeasance and discharge had
not occurred;
(c) in the case of Covenant Defeasance under Section 403, the Company
has delivered to the Trustee an Opinion of Counsel to the effect that, and such
opinion shall confirm that, the Holders of the Securities will not recognize
income, gain or loss for federal income tax purposes as a result of such deposit
and Covenant Defeasance and will be subject to federal income tax on the same
amount and in the same manner and at the same times, as would have been the case
if such deposit and Covenant Defeasance had not occurred;
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(d) such Defeasance or Covenant Defeasance will not result in a breach
or violation of, or constitute a default under, any agreement or instrument to
which the Company is a party or by which it is bound; and
(e) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent contemplated by this provision have been complied with.
SECTION 405. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations deposited with the Trustee pursuant to
Section 401 shall be held in trust and such money and all money from such U.S.
Government Obligations shall be applied by it, in accordance with the provisions
of the Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal and
interest for whose payment such money and U.S. Government Obligations has been
deposited with the Trustee.
SECTION 406. INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 404 or the principal or interest received in
respect of such obligations other than any such tax, fee or other charge that by
law is for the account of the Holders of Outstanding Securities.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of DefaultEvent of Default" wherever used herein, means any one
of the following events that has occurred and is continuing (whatever the reason
for such Event of Default and whether it shall be occasioned by the provisions
of Article Eleven or be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body):
(1) failure for sixty days to pay any installment of interest on the
Securities when due (subject to the deferral of any due date in the case of an
Extension Period); or
(2) failure to pay any principal on the Securities when due whether at
Stated Maturity, following notice of redemption, by declaration of acceleration
or otherwise; or
(3) failure to observe or perform in any material respect any other
covenant or agreement herein (other than a covenant or agreement default which
is specifically designated as having a different time period) for sixty days
after written notice to the Company from the Trustee; or
(4) (i) default under any instrument (including the Indenture) under
which there is at the time outstanding, or by which there may be secured or
evidenced, any indebtedness of the Company
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for money borrowed by the Company (other than non-recourse indebtedness) which
results in acceleration or nonpayment at maturity (after giving effect to any
applicable grace period) of such indebtedness in an aggregate amount exceeding
$15,000,000; or any such indebtedness exceeding $15,000,000 shall otherwise be
declared to be due and payable, or required to be prepaid (other than by a
regularly scheduled prepayment or exercise of an optional prepayment right),
prior to the stated maturity thereof; or any failure by the Company to make any
payment under a guarantee in respect of any indebtedness, in each case in an
amount of at least $15,000,000, on the date such payment is due (or within any
grace period specified in the agreement or other instrument governing such
indebtedness); in which case the Company shall immediately give notice to the
Trustee of such acceleration or non-payment, and (ii) there shall have been a
failure to cure such default or to pay or discharge such defaulted indebtedness
within ten (10) days after written notice thereof as provided in the Indenture;
or
(5) the voluntary or involuntary dissolution or winding up of the
business of the Trust or other termination of the existence of the Trust, other
than in connection with (i) the distribution of the Securities to holders of the
Preferred Securities in liquidation of their interests in the Trust, (ii) the
redemption of all outstanding Preferred Securities and Common Securities or
(iii) certain mergers, consolidations or amalgamations of the Trust, each as
permitted by the Declaration; or
(6) any final non-appealable judgment or order for the payment of money
in excess of $15,000,000 is rendered against the Company, such judgment or order
is not satisfied by payment or bonded and either enforcement proceedings shall
have been commenced by the judgment creditor or there has been a period of 30
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not have been in effect;
provided, however, that a judgment or order fully covered by insurance (or a
judgment or order for the payment of money covered by insurance to the extent of
all payments in excess of $15,000,000), which coverage has not been disputed by
the insurer, shall not be considered a default or an Event of Default; or
(7) entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of substantially all of the property of the
Company, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other decree or
order unstayed and in effect for a period of 90 consecutive days; or
(8) (A) the commencement by the Company of a voluntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or (B) the consent by the Company or to the
entry of a decree or order for relief in respect of itself in an involuntary
case or proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against the Company, or (C) the filing by the
Company of a petition or answer or consent seeking reorganization or relief
under any applicable federal or state law, or (D) the consent by the Company to
the filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of all or substantially all of the property
of the Company, or (E) the making by the Company of an assignment for the
benefit of creditors.
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SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default occurs and is continuing, then and in every such
case the Trustee, as the holder of the Securities, shall have the right to
declare the principal of and the interest on all the Securities and any other
amounts payable hereunder to be due and payable immediately, provided, however,
that if upon an Event of Default, the Trustee fails to declare the payment of
all amounts on the Securities to be immediately due and payable, any record
holder of Preferred Securities then outstanding shall have such right, by a
notice in writing to the Company (and to the Trustee if given by Holders or the
holders of Preferred Securities) and upon any such declaration such principal
and all accrued interest shall become immediately due and payable.
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 as hereinafter provided in this Article, the Holders of a majority
in principal amount of the Outstanding Securities, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if (1) the Company has paid or deposited with the Trustee a sum
sufficient to pay (A) all overdue interest on all Securities, (B) the principal
of (and premium, if any, on) any Securities which have become due otherwise than
by such declaration of acceleration and interest thereon at the rate borne by
the Securities, (C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities, and (D) all
sums paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel; (2)
all Events of Default, other than the non-payment of the principal of Securities
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on any Security 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 any Security at
the Maturity thereof, the Company will, upon demand of the Trustee, pay to it,
for the benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal and interest, and, to the extent that
payment thereof shall be legally enforceable, interest on any overdue principal
and on any overdue interest, at the rate borne by the Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
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SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company (or any other obligor upon the Securities),
its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee shall
be authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607. No provision of this Indenture shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Subject to Article Eleven, any money collected by the Trustee pursuant
to this Article shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on account
of principal upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for principal
of and interest on the Securities in respect of which or for the benefit of
which such money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such Securities for
principal and interest, respectively; and
THIRD: To the payment of any amounts remaining to the Company as soon
as practicable.
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SECTION 507. LIMITATION ON SUITS.
No Holder of any Security 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) such Holder has previously given written notice to the Trustee of a
continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities; it being understood and intended
that no one or more Holders 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, or to obtain or to seek to obtain
priority or preference over any other Holders 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.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and (subject to Section 307) interest on
such Security on the Stated Maturity expressed in such Security (or, in the case
of redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired without the consent
of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other
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right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture; and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
Subject to Sections 902 and 1009 hereof, the Holders of not less than a
majority in principal amount of the Outstanding Securities may on behalf of the
Holders of all the Securities waive any past default hereunder and its
consequences, except a default
(1) in the payment of the principal of or interest on any Security
(unless such default has been cured and a sum sufficient to pay all matured
installments of interest and principal due otherwise than by acceleration has
been deposited with the Trustee); or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected; provided, however, that such waiver or
modification to such waiver shall not be effective until the holders of a
majority in liquidation preference of Preferred Securities shall have consented
to such waiver or modification to such waiver; provided further, that if the
consent of the Holder of each of the Outstanding Securities is required, such
waiver shall not be effective until each Holder of the Preferred Securities
shall have consented to such waiver.
Upon any such waiver, such default shall cease to exist, effective as
of the date specified in such waiver (and effective retroactively to the date of
default, if so specified) and any Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
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SECTION 514. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs, including legal fees and expenses, of such
suit, and may assess costs against any such party litigant, in the manner and to
the extent provided in the Trust Indenture Act; provided, that neither this
Section nor the Trust Indenture Act shall be deemed to authorize any court to
require such an undertaking or to make such an assessment in any suit instituted
by the Company or the Trustee or in any suit for the enforcement of the right to
receive the principal of and interest on any Security.
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 516. PREFERRED SECURITY HOLDERS RIGHTS.
If an Event of Default constituting the failure to pay interest or
principal on the Securities on the date such interest or principal is otherwise
payable has occurred and is continuing, then a holder of Preferred Securities
may directly institute a proceeding for enforcement of payment to such holder
directly of the principal of or interest on the Securities having a principal
amount equal to the aggregate liquidation amount of the Preferred Securities of
such holder on or after the respective due date specified in the Securities.
ARTICLE SIX
TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act and no implied covenants or obligations shall be read
into this Indenture against the Trustee. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
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SECTION 602. NOTICE OF DEFAULTS.
The Trustee shall give the Holders notice of any default hereunder as
and to the extent provided by the Trust Indenture Act; provided, however, that
except in the case of a default in the payment of the principal of or interest
on any Security, the Trustee shall be protected in withholding such notice if
and so long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the Holders
of Securities; provided, further, that in the case of any default of the
character specified in Section 501(3), no such notice to Holders shall be given
until at least 30 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default. For purposes of this Section,
the Trustee shall not be deemed to have knowledge of a default unless the
Trustee has actual knowledge of such default or has received written notice of
such default in the manner contemplated by Section 105.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its choice and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
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(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the use
or application by the Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Paying Agent, any Security Registrar, or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 608 and 613, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Security Registrar, or such other agent. Money held
by the Trustee in trust hereunder shall not be invested by the Trustee pending
distribution thereof to the holders of the Securities.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
SECTION 607. COMPENSATION; REIMBURSEMENT; AND INDEMNITY.
The Company agrees
(1) to pay to the Trustee from time to time such compensation as the
Company and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
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(3) to indemnify each of the Trustee and any predecessor Trustee for,
and to hold it harmless against, any and all loss, damage, claim, liability or
expense, including taxes (other than taxes based on the receipts or income of
the Trustee) incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of this trust or the
trusts hereunder, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
The obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. As security for the performance of such obligations
of the Company, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (and premium, if any, on) or interest
on particular Securities.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Sections 501(7) and 501(8), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000 and has its Corporate Trust
Office in New York, New York. If such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written notice thereof
to the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
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(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company or by any
such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the
Trustee or 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 the Trustee, or (ii) subject to Section 514, any Holder who has been a
bona fide Holder of a Security for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to all Holders in the
manner provided in Section 106. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee,
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without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; provided that, on
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder. 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.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(a) semiannually, not later than February 15 and August 15 in each
year, a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders to the extent the Company has knowledge thereof as
of a date not more than 15 days prior to the delivery thereof, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such, a list of similar form and
content as of a date not more than 15 days prior to the time such list is
furnished;
excluding from any such list names and addresses received by the
Trustee in its capacity as Security Registrar.
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SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 supplied to the Trustee
by the Depository at the Trustee's request, and the names and addresses of
Holders received by the Trustee in its capacity as Security Registrar. The
Trustee may destroy any list furnished to it as provided in Section 701 upon
receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 703. REPORTS BY TRUSTEE.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within
sixty days after each May 15 following the date of this Indenture deliver to
Holders a brief report, dated as of such May 15, which complies with the
provisions of such Section 313 (a).
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed, with the Commission and with the Company. The Company
will promptly notify the Trustee when the Securities are listed on any stock
exchange.
SECTION 704. REPORTS BY COMPANY.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 shall
be filed with the Trustee within 15 days after the same is so required to be
filed with the Commission. Delivery of such reports, information and documents
to the Trustee is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety, the successor Person
formed by such consolidation or into which the Company is merged or to which
such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor Person had been named as the Company
herein, and thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and in
the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the Company;
or
(3) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under this
Indenture which shall not be inconsistent with the provisions of this Indenture,
provided that such action pursuant to this clause (3) shall not adversely affect
the interests of the Holders of the Securities or, so long as any of the
Preferred Securities shall remain outstanding, the holders of the Preferred
Securities; or
(4) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust Indenture
Act.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the
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Holders under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) except to the extent permitted and subject to the conditions set
forth in Section 301 with respect to the extension of the Stated Maturity of the
Securities, change the Stated Maturity of, the principal of, or any installment
of interest on, any Security, or reduce the principal amount thereof or the rate
of interest thereon, or change the place of payment where, or the coin or
currency in which, any Security or interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or modify the provisions of this Indenture with respect to the
subordination of the Securities in a manner adverse to the Holders,
(2) reduce the percentage in principal amount of the Outstanding
Securities, 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, Section 513 or
Section 1010, 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 Outstanding Security affected thereby;
provided, that, so long as any of the Preferred Securities remains
outstanding, no such amendment shall be made that adversely affects the holders
of the Preferred Securities, and no termination of this Indenture shall occur,
and no waiver of any Event of Default or compliance with any covenant under this
Indenture shall be effective, without the prior consent of the holders of at
least a majority of the aggregate liquidation preference of the outstanding
Preferred Securities unless and until the principal of and any premium on the
Securities and all accrued and unpaid interest thereon have been paid in full.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
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SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
ARTICLE TEN
COVENANTS; REPRESENTATIONS AND WARRANTIES
SECTION 1001. PAYMENT OF PRINCIPAL AND INTEREST.
The Company will duly and punctually pay the principal of and interest
on the Securities in accordance with the terms of the Securities and this
Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in The City of New York an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer or exchange, where Securities
may be surrendered for conversion and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in the United States) where the Securities may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in the United States for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
SECTION 1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent, it will,
on or at the option of the Company on or before each due date of the principal
of or interest on any of the Securities, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal or
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interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee of
its action or failure so to act. In such case the Company shall not invest the
amount so segregated and held in trust pending the distribution thereof.
Whenever the Company shall have one or more Paying Agents, it will, on
or prior to each due date of the principal of or interest on any Securities,
deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be
held as provided by the Trust Indenture Act, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act; provided, however, that any such deposit on a due date shall
be initiated prior to 1:00 p.m. (New York time) in same-day funds.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will (i) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent and (ii) during the continuance of any
default by the Company (or any other obligor upon the Securities) in the making
of any payment in respect of the Securities, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent as such.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or interest on any
Security and remaining unclaimed for two years after such principal or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease.
SECTION 1004. STATEMENT BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the
material terms, provisions and conditions of this Indenture (without regard to
any period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION 1005. EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the
42
<PAGE> 49
conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders and, while any Preferred
Securities are outstanding, the holders of the Preferred Securities.
SECTION 1006. MAINTENANCE OF PROPERTIES.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary 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 or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
SECTION 1007. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will 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 the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary that
comprise more than 10% of the assets of the Company and its Subsidiaries taken
as a whole; 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.
SECTION 1008. ADDITIONAL COVENANTS.
The Company covenants (i) to maintain 100%, direct or indirect,
ownership of the Common Securities of the Trust; provided, however, that any
permitted successor of the Company hereunder may succeed to the Company's
ownership of such Common Securities, (ii) not to voluntarily dissolve, wind-up
or terminate the Trust, except in connection with a distribution of the
Securities or certain mergers, consolidations or amalgamations, (iii) to timely
perform its duties as sponsor of the Trust, (iv) to use its reasonable efforts,
to cause the Trust (A) to remain a business trust classified as a grantor trust
except in connection with the distribution of the Securities to the holders of
the Preferred Securities in liquidation of the Trust, the redemption of all
Preferred Securities and Common Securities of the Trust or certain mergers,
consolidations or amalgamations, each as permitted by the Declaration, and (B)
to continue not to be treated as an association taxable as a corporation for
United States federal income tax purposes, (v) to use its reasonable efforts to
cause each holder of Preferred Securities and Common Securities to be treated as
owning an undivided beneficial interest in the Securities; and (vi) to appoint a
successor trustee whenever necessary to avoid or fill a vacancy in the office of
Trustee.
SECTION 1009. WAIVER OF CERTAIN COVENANTS.
Except as otherwise specified as contemplated by Section 301 for
Securities, the Company may, with respect to the Securities, omit in any
particular instance to comply with any term, provision or condition set forth in
any covenant provided pursuant to Section 901(2) for the benefit of the
43
<PAGE> 50
Holders if before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Securities shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision 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 in respect of any such term,
provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
SUBORDINATION OF SECURITIES
SECTION 1101. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article (subject to Article Four), the
payment of the principal of and interest on each and all of the Securities are
hereby expressly made subordinate and subject in right of payment to the prior
payment in full in cash of all Senior Indebtedness.
This Article Eleven 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 prove reliance on the
subordination provisions hereof.
SECTION 1102. 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 1102, 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 1103. 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,
44
<PAGE> 51
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 Eleven,
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 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 Eleven, 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
45
<PAGE> 52
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 Eleven 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 provided for in Article Eight hereof
shall not be deemed a dissolution, winding-up, liquidation or reorganization for
the purposes of this Section 1103 if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, comply with the conditions
stated in Article Eight hereof. Nothing in Section 1102 or in this Section 1103
shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 607.
SECTION 1104. 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 Eleven, and no payment over
pursuant to the provisions of this Article Eleven, 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 Eleven 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 Eleven 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 Eleven 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 Eleven, the Trustee, subject to the provisions of Section 601,
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
46
<PAGE> 53
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 Eleven.
SECTION 1105. 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 Eleven and
appoints the Trustee such Holder's attorney-in-fact for any and all such
purposes.
SECTION 1106. 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 Eleven. Notwithstanding the
provisions of this Article Eleven 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 Eleven,
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 601, 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 for in this Section 1106 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 601, 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 Eleven, 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 Eleven, 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 1107. 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 Eleven in respect of any Senior Indebtedness at
any time held by it, to the same extent as any other
47
<PAGE> 54
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 Eleven
shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 607.
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 Eleven, 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 601, 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 Eleven or otherwise.
SECTION 1108. 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 any
noncompliance 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.
48
<PAGE> 55
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
AMERICAN FINANCIAL GROUP, INC.
By:
---------------------------
Name: James E. Evans
Title: Senior Vice President
THE BANK OF NEW YORK, as Trustee
By:
---------------------------
Name:
Title:
49
<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 Financial
Group, Inc. for the registration of $500,000,000 of its Debt Securities and
Common Stock and Preferred Securities of American Financial Capital Trust II,
and to the incorporation by reference therein of our report dated March 15,
1996, with respect to the consolidated financial statements and schedules of
American Financial Group, Inc. included in its Annual Report (Form 10-K) for the
year ended December 31, 1995, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Cincinnati, Ohio
February 7, 1997
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-3 of American Financial Group, Inc. for the registration of its Debt
Securities and Common Stock and Preferred Securities of American Financial
Capital Trust II of (a) the report of Deloitte & Touche LLP dated February 15,
1995 (March 23, 1995 with respect to the acquisition of American Financial
Corporation as discussed in Note B to the financial statements) relating to the
consolidated financial statements of American Premier Underwriters, Inc. and (b)
the report of Deloitte & Touche dated February 18, 1994 relating to the
consolidated financial statements of General Cable Corporation, both appearing
in the American Financial Group, Inc. Annual Report on Form 10-K for the year
ended December 31, 1995, and to the reference to Deloitte & Touche LLP and
Deloitte & Touche under the heading "Experts" in the Prospectus, which is part
of such Registration Statement.
DELOITTE & TOUCHE LLP
Cincinnati, Ohio
February 7, 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
Financial Group, Inc. for the registration of $500,000,000 of its Debt
Securities and Common Stock and Preferred Securities of American Financial
Capital Trust II. 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
February 7, 1997
<PAGE> 1
EXHIBIT 23.3
CONSENT OF AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
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
Financial Group, Inc. for the registration of $500,000,000 of its Debt
Securities and Common Stock and Preferred Securities of American Financial
Capital Trust II. 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.
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
Cincinnati, Ohio
February 7, 1997
<PAGE> 1
Exhibit 23.4
CONSENT OF MORRIS, NICHOLS, ARSHT & TUNNELL
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 Financial Group, Inc. for the registration of $500,000,000 of its Debt
Securities and Common Stock and Preferred Securities of American Financial
Capital Trust II. In providing this consent, we do not thereby admit that we
are within the category of persons whose consent is required under the Section
7 of the Securities Act of 1933, as amended, or the rules and regulations of
the Securities and Exchange Commission promulgated thereunder.
MORRIS, NICHOLS, ARSHT & TUNNELL
Cincinnati, Ohio
February 7, 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)
- --------------------------------------------------------------------------------
Nancy V. Kelly
Senior Vice President
Star Bank, National Association
425 Walnut Street
Cincinnati, Ohio 45202
(513) 632-4390
(Name, address, and telephone number of agent for services)
-----------------------------------------------------------
AMERICAN FINANCIAL GROUP, INC.
- --------------------------------------------------------------------------------
(Exact name of obligor as specified in its charter)
Ohio 31-1422526
- ----------------------- ---------------------------------
(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>
<S> <C> <C> <C> <C>
Col. A. Col. B. Col. C Col. D
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>
<S> <C> <C> <C> <C>
Col. A. Col B. Col. C Col. D
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>
<S> <C> <C> <C>
Col. A Col. B Col. C Col. D
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>
<S> <C> <C> <C> <C>
Col. A Col. B Col. C Col. D
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>
<S> <C> <C> <C> <C>
Col. A Col. B Col. C Col. D
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>
<S> <C> <C> <C> <C>
Col. A Col. B Col. C Col. D
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)
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Col. A Col. B Col. C
Amount
Nature of Indebtedness Outstanding Due Date
---------------------- ----------- --------
</TABLE>
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>
<S> <C> <C> <C> <C>
Col. A Col. B Col. C Col. D
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 6th day of
February, 1997.
STAR BANK, NATIONAL ASSOCIATION
By: /s/ Nancy V. Kelly
----------------------------------
Nancy V. Kelly
Senior Vice President
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 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 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
2/5/96
-------------- BY: /s/ Nancy V. Kelly
Date ---------------------------------
Nancy V. Kelly
Senior Vice President
22
<PAGE> 23
EXHIBIT 6
---------
CONSOLIDATED REPORT OF CONDITION
STAR BANK, NATIONAL ASSOCIATION
FOR SEPTEMBER 30, 1996
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.
<TABLE>
<CAPTION>
BALANCE SHEET
Dollar Amounts in
Thousands
ASSETS
<S> <C>
1. Cash and balances due from depository institutions
a. Noninterest-bearing balances and currency and coin $454,669
b. Interest-bearing balances 0
2. Securities:
a. Held-to-maturity securities 176,897
b. Available-for-sale securities 1,250,651
3. Federal funds sold and securities purchased under agreements to resell
in domestic offices of the bank and of its Edge and Agreements subsidiaries,
and in YBFs:
a. Federal funds sold 25,000
b. Securities purchased under agreements to resell 0
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income
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 7,273,294
5. Trading assets 842
6. Premises and fixed assets (including capitalized leases) 113,340
7. Other real estate owned 2,685
8. Investments in unconsolidated subsidiaries and associated companies 0
9. Customers' liability to this bank on acceptances outstanding 18,482
10. Intangible assets 214,871
11. Other assets 176,875
12. Total assets $9,707,606
</TABLE>
<PAGE> 24
<TABLE>
<CAPTION>
CONSOLIDATED REPORT OF CONDITION STAR BANK, NATIONAL ASSOCIATION
FOR SEPTEMBER 30, 1996 CONTINUED
Dollar Amounts
in Thousands
<S> <C>
LIABILITIES
13. Deposits:
a. In domestic offices $7,763,842
(1) Noninterest-bearing $1,463,070
(2) Interest-bearing 6,300,772
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs 40,179
(1) Noninterest-bearing 0
(2) Interest-bearing 40,179
14. Federal funds purchased and securities sold under agreements ro repurchase
in domestic offices of the bank and of its Edge and Agreement subsidiaries, and
in IBFs:
a. Federal funds purchased 733,055
b. Securities sold under agreements to repurchase 55,976
15. a. Demand notes issued to the U.S. Treasury 646
b. Trading liabilities 0
16. Other borrowed money:
a. With original maturity of one year or less 21,338
b. With original maturity of more than one year 0
17. Mortgage indebtedness and obligations under capitalizated leases 11,698
18. Bank's liability on acceptances executed and outstanding 18,482
19. Subordinated notes and debentures 148,556
20. Other liabilities 126,421
21. Total liabilities 8,920,193
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] 263,293
26. a. Undivided profits and capital reserves 505,542
b. Net unrealized holding gains (losses) on available-for-sale
securities 378
27. Cumulative foreign currency translation adjustments 0
28. Total equity capital 787,413
29. Total liabilities, limited-life preferred stock, and equity capital $9,707,606
</TABLE>
<PAGE> 1
Exhibit 25.2
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
AMERICAN FINANCIAL GROUP, INC.
(Exact name of obligor as specified in its charter)
Ohio 31-1422526
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
One East Fourth Street
Cincinnati, Ohio 45202
(Address of principal executive offices) (Zip code)
----------------------
% Subordinated Debentures due
(Title of the indenture securities)
================================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------
Name Address
- -----------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE
24 OF THE COMMISSION'S RULES OF PRACTICE.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE> 3
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-3-
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 5th day of February, 1997.
THE BANK OF NEW YORK
By: /s/ BYRON MERINO
------------------------------
Name: BYRON MERINO
Title: ASSISTANT TREASURER
-4-
<PAGE> 5
Exhibit 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286 And Foreign and Domestic Subsidiaries, a
member of the Federal Reserve System, at the close of business September 30,
1996, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 4,404,522
Interest-bearing balances .......... 732,833
Securities:
Held-to-maturity securities ........ 789,964
Available-for-sale securities ...... 2,005,509
Federal funds sold in domestic offices of the bank:
Federal funds sold ................... 3,364,838
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................28,728,602
LESS: Allowance for loan and
lease losses ..............584,525
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve 28,143,648
Assets held in trading accounts ...... 1,004,242
Premises and fixed assets (including
capitalized leases) ................ 605,668
Other real estate owned .............. 41,238
Investments in unconsolidated
subsidiaries and associated
companies .......................... 205,031
Customers' liability to this bank on
acceptances outstanding ............ 949,154
Intangible assets .................... 490,524
Other assets ......................... 1,305,839
-----------
Total assets ......................... $44,043,010
===========
LIABILITIES
Deposits:
In domestic offices ................ $20,441,318
Noninterest-bearing .......8,158,472
Interest-bearing .........12,282,846
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 11,710,903
Noninterest-bearing ..........46,182
Interest-bearing .........11,664,721
Federal funds purchased in
domestic offices of the
bank:
Federal funds purchased ............ 1,565,288
Demand notes issued to the U.S.
Treasury ........................... 293,186
Trading liabilities .................. 826,856
Other borrowed money:
With original maturity of one year
or less .......................... 2,103,443
With original maturity of more than
one year ......................... 20,766
Bank's liability on acceptances exe-
cuted and outstanding .............. 951,116
Subordinated notes and debentures .... 1,020,400
Other liabilities .................... 1,522,884
-----------
Total liabilities .................... 40,456,160
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 2,129,376
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ ( 2,073)
Cumulative foreign currency transla-
tion adjustments .................. ( 8,403)
-----------
Total equity capital ................ 3,586,850
-----------
Total liabilities and equity
capital ........................... $44,043,010
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot )
Thomas A. Renyi ) Directors
Alan R. Griffith )
- --------------------------------------------------------------------------------
<PAGE> 1
Exhibit 25.3
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
AMERICAN FINANCIAL CAPITAL TRUST II
(Exact name of obligor as specified in its charter)
Delaware Applied for
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
One East Fourth Street
Cincinnati, Ohio 45202
(Address of principal executive offices) (Zip code)
----------------------
% Trust Originated Preferred Securities
(Title of the indenture securities)
================================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------
Name Address
- ---------------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE
24 OF THE COMMISSION'S RULES OF PRACTICE.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE> 3
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-3-
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 5th day of February, 1997.
THE BANK OF NEW YORK
By: /s/ BYRON MERINO
-------------------------------
Name: BYRON MERINO
Title: ASSISTANT TREASURER
-4-
<PAGE> 5
Exhibit 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286 And Foreign and Domestic Subsidiaries, a
member of the Federal Reserve System, at the close of business September 30,
1996, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 4,404,522
Interest-bearing balances .......... 732,833
Securities:
Held-to-maturity securities ........ 789,964
Available-for-sale securities ...... 2,005,509
Federal funds sold in domestic offices of the bank:
Federal funds sold ................... 3,364,838
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................28,728,602
LESS: Allowance for loan and
lease losses ..............584,525
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve 28,143,648
Assets held in trading accounts ...... 1,004,242
Premises and fixed assets (including
capitalized leases) ................ 605,668
Other real estate owned .............. 41,238
Investments in unconsolidated
subsidiaries and associated
companies .......................... 205,031
Customers' liability to this bank on
acceptances outstanding ............ 949,154
Intangible assets .................... 490,524
Other assets ......................... 1,305,839
-----------
Total assets ......................... $44,043,010
===========
LIABILITIES
Deposits:
In domestic offices ................ $20,441,318
Noninterest-bearing .......8,158,472
Interest-bearing .........12,282,846
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 11,710,903
Noninterest-bearing ..........46,182
Interest-bearing .........11,664,721
Federal funds purchased in
domestic offices of the
bank:
Federal funds purchased ............ 1,565,288
Demand notes issued to the U.S.
Treasury ........................... 293,186
Trading liabilities .................. 826,856
Other borrowed money:
With original maturity of one year
or less .......................... 2,103,443
With original maturity of more than
one year ......................... 20,766
Bank's liability on acceptances exe-
cuted and outstanding .............. 951,116
Subordinated notes and debentures .... 1,020,400
Other liabilities .................... 1,522,884
-----------
Total liabilities .................... 40,456,160
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 2,129,376
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ ( 2,073)
Cumulative foreign currency transla-
tion adjustments .................. ( 8,403)
-----------
Total equity capital ................ 3,586,850
-----------
Total liabilities and equity
capital ........................... $44,043,010
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot )
Thomas A. Renyi ) Directors
Alan R. Griffith )
- --------------------------------------------------------------------------------
<PAGE> 1
Exhibit 25.4
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
AMERICAN FINANCIAL GROUP, INC.
(Exact name of obligor as specified in its charter)
Ohio 31-1422526
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
One East Fourth Street
Cincinnati, Ohio 45202
(Address of principal executive offices) (Zip code)
----------------------
Guarantee of Preferred Securities of
American Financial Capital Trust II
(Title of the indenture securities)
================================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------
Name Address
- ------------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE
24 OF THE COMMISSION'S RULES OF PRACTICE.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE> 3
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-3-
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 5th day of February, 1997.
THE BANK OF NEW YORK
By: /s/ BYRON MERINO
---------------------------
Name: BYRON MERINO
Title: ASSISTANT TREASURER
-4-
<PAGE> 5
Exhibit 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286 And Foreign and Domestic Subsidiaries, a
member of the Federal Reserve System, at the close of business September 30,
1996, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 4,404,522
Interest-bearing balances .......... 732,833
Securities:
Held-to-maturity securities ........ 789,964
Available-for-sale securities ...... 2,005,509
Federal funds sold in domestic offices of the bank:
Federal funds sold ................... 3,364,838
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................28,728,602
LESS: Allowance for loan and
lease losses ..............584,525
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve 28,143,648
Assets held in trading accounts ...... 1,004,242
Premises and fixed assets (including
capitalized leases) ................ 605,668
Other real estate owned .............. 41,238
Investments in unconsolidated
subsidiaries and associated
companies .......................... 205,031
Customers' liability to this bank on
acceptances outstanding ............ 949,154
Intangible assets .................... 490,524
Other assets ......................... 1,305,839
-----------
Total assets ......................... $44,043,010
===========
LIABILITIES
Deposits:
In domestic offices ................ $20,441,318
Noninterest-bearing .......8,158,472
Interest-bearing .........12,282,846
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 11,710,903
Noninterest-bearing ..........46,182
Interest-bearing .........11,664,721
Federal funds purchased in
domestic offices of the
bank:
Federal funds purchased ............ 1,565,288
Demand notes issued to the U.S.
Treasury ........................... 293,186
Trading liabilities .................. 826,856
Other borrowed money:
With original maturity of one year
or less .......................... 2,103,443
With original maturity of more than
one year ......................... 20,766
Bank's liability on acceptances exe-
cuted and outstanding .............. 951,116
Subordinated notes and debentures .... 1,020,400
Other liabilities .................... 1,522,884
-----------
Total liabilities .................... 40,456,160
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 2,129,376
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ ( 2,073)
Cumulative foreign currency transla-
tion adjustments .................. ( 8,403)
-----------
Total equity capital ................ 3,586,850
-----------
Total liabilities and equity
capital ........................... $44,043,010
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot )
Thomas A. Renyi ) Directors
Alan R. Griffith )
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