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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 30, 1999
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AMERICAN FINANCIAL GROUP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
OHIO 31-1544320
(STATE OR OTHER JURISDICTION (IRS EMPLOYER IDENTIFICATION NUMBER)
OF INCORPORATION OR ORGANIZATION)
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)
DELAWARE 31-6549738
(STATE OR OTHER JURISDICTION (IRS EMPLOYER IDENTIFICATION NUMBER)
OF INCORPORATION OR ORGANIZATION)
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)
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JAMES C. KENNEDY, ESQ.
VICE PRESIDENT, 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:
MARK A. WEISS, ESQ.
KEATING, MUETHING & KLEKAMP, P.L.L.
1800 PROVIDENT TOWER
CINCINNATI, OHIO 45202
(513) 579-6599
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.
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If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
(Cover continued on next page)
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If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
AGGREGATE OFFERING PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE (2)(3) PRICE(2)(3) REGISTRATION FEE(4)
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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.(5)
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Total $450,000,000 100% $450,000,000 $125,100
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(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
$450,000,000.
(3) Excluding accrued interest and distributions, if any.
(4) A filing fee of $15,152 was previously paid in connection with $50,000,000
of Debt Securities and Common Stock of American Financial Group, Inc., and
Preferred Securities of American Financial Capital Trust II registered under
the Registration Statement on Form S-3 (No. 333-21995).
(5) 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.
Pursuant to Rule 429 of the Securities Act of 1933, the Prospectus
contained in this Registration Statement also relates to $50,000,000 of unissued
Debt Securities and Common Stock of American Financial Group, Inc., and
Preferred Securities of American Financial Capital Trust II registered pursuant
to the Registrants' Registration Statement on Form S-3 (No. 333-21995). This
Registration Statement, which is a new registration statement, also constitutes
a post-effective amendment to Registration Statement No. 333-21995. Such post-
effective amendment shall become effective concurrently with the effectiveness
of this Registration Statement in accordance with Section 8(a) of the Securities
Act of 1933.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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SUBJECT TO COMPLETION, DATED , 1999
PROSPECTUS
$500,000,000
AMERICAN FINANCIAL GROUP, INC.
Debt Securities and Common Stock
and
AMERICAN FINANCIAL CAPITAL TRUST II
Preferred Securities
Fully and unconditionally guaranteed, as described in this prospectus, by
American Financial Group, Inc.
We will provide the specific terms of these securities in supplements to
this prospectus. You should read carefully this prospectus and any supplement
before you invest.
This Prospectus may not be used to consummate sales of securities unless
accompanied by a prospectus supplement.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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The date of this Prospectus is , 1999.
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement filed with the
Securities and Exchange Commission utilizing a shelf registration process. Under
this shelf process, American Financial Group, Inc. and American Financial
Capital Trust II may sell the securities described in this prospectus in one or
more offerings up to a total dollar amount of $500,000,000. This prospectus
provides you with a general description of the securities which may be offered.
Each time securities are offered for sale, a prospectus supplement will be
provided that contains specific information about the terms of that offering.
The prospectus supplement may also add, update or change information contained
in this prospectus. You should read both this prospectus and any prospectus
supplement together with additional information described below under the
following heading.
WHERE YOU CAN FIND MORE INFORMATION
American Financial Group files annual, quarterly and special reports, proxy
statement and other information with the SEC. These filings are available to the
public over the Internet at the SEC's web site at http://www.sec.gov. You may
also read and copy any document American Financial Group files at the SEC's
public reference rooms in Washington, D.C., New York City and Chicago. Please
call the SEC at 1-800-732-0330 for further information on the public reference
rooms. American Financial Group's common stock, previously issued debt
securities and the securities of a related trust are also listed on the New York
Stock Exchange, and you may inspect any document at its offices located at 20
Broad Street, New York, NY 10005.
The SEC allows American Financial Group to "incorporate by reference" the
information it files with the SEC. This means that American Financial Group can
disclose important information to you by referring you to documents American
Financial Group files with the SEC. The information incorporated by reference is
an important part of this prospectus. Information that American Financial Group
files later with the SEC will automatically update and supersede information
which American Financial Group has previously incorporated by reference until
American Financial Group sells all of the securities described in this
prospectus. The following documents of American Financial Group are incorporated
by reference in this prospectus:
FILING DATE
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Annual Report on Form 10-K Year Ended December 31, 1998
Quarterly Report on Form 10-Q Quarter Ended March 31, 1999
Report on Form 8-K April 13, 1999
All documents filed by American Financial Group under Section 13(a), 13(e),
14 or 15(d) of the Securities Exchange Act of 1934 after the date of this
prospectus will be deemed incorporated by reference into this prospectus and to
be a part of this prospectus from the date of filing of the documents.
No separate financial statements of the Trust have been included and none
are incorporated by reference in this prospectus. American Financial Group does
not believe that financial statements of the Trust would be useful since the
Trust will not have any independent function other than to issue securities
representing undivided interests in its assets and investing the proceeds in
American Financial Group debt securities. In addition, all obligations of the
Trust are fully and unconditionally guaranteed by American Financial Group.
We will provide you with a copy of any of these documents we are
incorporating by reference at no cost, by writing or telephoning us at the
following address or telephone number:
James C. Kennedy
Vice President, Deputy General Counsel and Secretary
American Financial Group, Inc.
One East Fourth Street
Cincinnati, Ohio 45202
(513) 579-2538
You should rely only on the information incorporated by reference or
provided in this prospectus. No one else is authorized to provide you with any
other information or any different information. Neither
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American Financial Group nor the Trust is making an offer of its securities in
any state where an offer is not permitted. You should not assume that the
information in this prospectus is accurate as of any date other than the date on
the front of those documents.
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AMERICAN FINANCIAL GROUP, INC.
American Financial Group, Inc. is engaged primarily in private passenger
automobile and specialty property and casualty insurance businesses and in the
sale of tax-deferred annuities and certain life and supplemental health
insurance products. At March 31, 1999, AFG had total assets of $15.7 billion and
shareholders' equity of $1.6 billion.
AFG's property and casualty operation originated in the 1800's and is one
of the 25 largest property and casualty groups in the United States based on
statutory net premiums written. We have achieved outstanding results that
consistently outperform insurance industry averages by focusing on highly
specialized niche products and markets, supplemented with personal automobile
products.
Our annuity, life and health operations are headed by American Annuity
Group, Inc., an 83%-owned subsidiary with over $7 billion in assets. AAG
specializes in the sale of retirement products, including traditional fixed,
equity-indexed and variable annuities. In 1998, AAG's retirement annuity
premiums were in excess of $500 million; its life and health premiums exceeded
$100 million.
The address of our principal executive offices is One East Fourth Street,
Cincinnati, Ohio, 45202, and our telephone number is (513) 579-2121. All
references to "we," "us," "the Company," "AAFG" or "American Financial Group" in
this prospectus mean, unless the context otherwise indicates, American Financial
Group, Inc. and its consolidated subsidiaries.
THE TRUST
The Trust is a statutory business trust formed under Delaware law pursuant
to (i) a declaration of trust executed by the Company, as sponsor, and the
trustees (described below) for the Trust and (ii) the filing of a certificate of
trust with the Delaware Secretary of State. The Trust's declaration will be
amended and restated as of the date the securities of the Trust are initially
issued. The amended declaration will be qualified as an indenture under the
Trust Indenture Act of 1939.
The Trust exists solely for the purposes of:
- issuing preferred securities and common securities representing undivided
beneficial interests in the assets of that Trust;
- investing the proceeds of those securities issuances in junior
subordinated debt securities of the Company; and
- engaging only in other incidental activities.
The rights of the holders of the trust securities, including economic
rights, rights to information and voting rights, are set forth in the amended
declaration of the Trust, the Delaware Business Trust Act and the Trust
Indenture Act.
The Company will own, directly or indirectly, all of the common securities
of the Trust, which will have an aggregate liquidation amount equal to 3% of the
total capital of the Trust. The common securities will generally rank equally in
right of payment with the preferred securities, and payments on both will be
made pro rata. However, upon an event of default under the Trust's amended
declaration, the rights of the holders of the common securities to payment 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 pay all fees and expenses related to the Trust and the offering of
trust securities.
The Company, as holder of all 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 business and affairs of the Trust will be conducted
by such trustees, and the duties and obligations of the trustees will be
governed by the amended declaration of the Trust.
At least two of the trustees of the Trust will be persons who are employees
or officers of, or otherwise affiliated with, the Company. These persons are
sometimes referred to herein as "regular" trustees. One
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trustee of the Trust will be a financial institution which will be unaffiliated
with the Company and which will act as property trustee and as indenture trustee
for purposes of the Trust Indenture Act pursuant to the terms of the amended
declaration and as may be further described in a prospectus supplement. The
property trustee will hold title to the junior subordinated debt securities for
the benefit of the holders of the trust securities. In addition, unless the
property trustee maintains a principal place of business in the State of
Delaware and otherwise meets the requirements of applicable laws, one trustee of
the Trust will be a legal entity having a principal place of business in, or an
individual resident of, the State of Delaware.
Unless otherwise indicated in a prospectus supplement, The Bank of New York
will be the property trustee and The Bank of New York (Delaware) will be the
Delaware trustee. The address of the principal corporate trust office of The
Bank of New York is 101 Barclay Street, 21st Floor, New York, New York, 10286
and for The Bank of New York (Delaware) is White Clay Center, Route 273, Newark,
Delaware, 19711. The principal place of business of the Trust will be c/o
American Financial Group, Inc., One East Fourth Street, Cincinnati, Ohio, 45202,
telephone number (513) 579-2121.
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USE OF PROCEEDS
Unless otherwise indicated in an accompanying prospectus supplement, the
net proceeds received by AFG from the sale of any securities offered hereby are
expected to be used for general corporate purposes, which may include investment
in insurance businesses and the repayment of outstanding debt of AFG and its
subsidiaries. Until the net proceeds are used for these purposes, AFG 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. The proceeds
from any sale of preferred securities by the Trust will be invested in debt
securities of AFG.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
AFG 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 the fixed charges and the 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 interest on annuity benefits), amortization of debt
premium/discount and expense, preferred dividend and distribution requirements
of subsidiaries and a portion of rental expense deemed to be representative of
the interest factor. The ratio for years 1995 and 1994 do not give pro forma
effect to the April 1995 merger transactions through which AFG was created.
THREE MONTHS
ENDED
MARCH 31, YEAR ENDED DECEMBER 31,
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1999 1998 1998 1997 1996 1995 1994
---- ---- ---- ---- ---- ---- ----
Ratio of earnings to fixed charges....... 3.88 4.87 3.22 3.98 4.22 2.60 1.69
DESCRIPTION OF THE SECURITIES WE MAY OFFER
GENERAL
The Company may issue, in one or more offerings, any combination of senior
or subordinated debt securities and common stock. The Trust may issue in one or
more offerings, trust preferred securities that will be unconditionally
guaranteed by the Company.
This prospectus contains a summary of the general terms of the various
securities that the Company or the Trust may offer. The prospectus supplement
relating to any particular securities offered will describe the specific terms
of the securities, which may be in addition to or different from the general
terms summarized in this prospectus. The summary in this prospectus and in any
prospectus supplement does not describe every aspect of the securities and is
subject to and qualified in its entirety by reference to all applicable
provisions of the documents relating to the securities offered. These documents
are or will be filed as exhibits to or incorporated by reference in the
registration statement.
In addition, the prospectus supplement will set forth the terms of the
offering, the initial public offering price and net proceeds to the Company.
Where applicable, the prospectus supplement will also describe any material
United States federal income tax considerations relating to the securities
offered and indicate whether the securities offered are or will be listed on any
securities exchange.
BOOK-ENTRY SYSTEM
The Company or the Trust may issue securities in the form of one or more
fully registered global securities. These will be deposited with, or on behalf
of, the Depository Trust Company ("DTC") and registered in the name of its
nominee. Except as described below, the global securities may be transferred, in
whole and not in part, only to DTC or to another nominee of DTC.
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DTC has advised the Company that it is:
- A limited-purpose trust company organized under the laws of the state of
New York;
- A member of the Federal Reserve System;
- A "clearing corporation" within the meaning of the New York Uniform
Commercial Code; and
- A "clearing agency" registered pursuant to the provisions of Section 17A
of the Securities Exchange Act of 1934.
DTC was created to hold securities for institutions that have accounts with
DTC ("Participants") and to facilitate the clearance and settlement of
securities transactions among its Participants through electronic book-entry
changes in Participants' accounts. Participants include securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations, some of whom (and/or their representatives) own DTC. Access to
DTC's book-entry system is also available to others that clear through or
maintain a custodial relationship with a Participant, either directly or
indirectly. DTC administers its book-entry system in accordance with its rules
and bylaws and legal requirements.
Upon issuance of a global security representing offered securities, DTC
will credit (on its book-entry registration and transfer system) the principal
amount to Participants' accounts. Ownership of beneficial interests in the
global security will be limited to Participants or to persons that hold
interests through Participants. Ownership of interests in the global security
will be shown on, and the transfer of those ownership interests will be effected
only through, records maintained by DTC (with respect to Participants'
interests) and the Participants (with respect to the owners of beneficial
interests in the global security). The laws of some jurisdictions may require
that certain purchasers of securities take physical delivery of those securities
in definitive form. These limits and laws may impair the ability to transfer
beneficial interests in a global security.
So long as DTC (or its nominee), is the registered holder and owner of a
global security, DTC (or its nominee) will be considered, for all purposes under
the applicable indenture, the sole owner and holder of the related offered
securities. Except as described below, owners of beneficial interests in a
global security will not:
- be entitled to have the offered securities registered in their names; or
- receive or be entitled to receive physical delivery of certificated
offered securities in definitive form.
Each person owning a beneficial interest in a global security must rely on
DTC's procedures (and, if that person holds through a Participant, on the
Participant's procedures) to exercise any rights of a holder of offered
securities under the global security or any applicable indenture, or otherwise.
The indentures provide that DTC may grant proxies and otherwise authorize
Participants to take any action which it (as the holder of a global security) is
entitled to take under the indentures or the global security. We understand that
under existing industry practice, if the Company or the Trust requests any
action of holders or an owner of a beneficial interest in a global security
desires to take any action that DTC (as the holder of the global security) is
entitled to take, DTC would authorize the Participants to take that action and
the Participants would authorize their beneficial owners to take the action or
would otherwise act upon the instructions of their beneficial owners.
The Company or the Trust will make payments with respect to securities
represented by a global security to DTC. We expect that DTC, upon receipt of any
payments, will immediately credit Participants' accounts with payments in
amounts proportionate to their respective beneficial interests. We also expect
that payments by Participants to owners of beneficial interests in a global
security held through them will be governed by standing instructions and
customary practices (as is the case with securities held for customers' accounts
in "street name") and will be the responsibility of the Participants. None of
the Company, the Trust or any trustee will have any responsibility or liability
for:
- any aspect of the records relating to, or payments made on account of,
beneficial ownership interests in a global security for any securities;
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- maintaining, supervising, or reviewing any records relating to any
beneficial ownership interests;
- any other aspect of the relationship between DTC and its Participants; or
- the relationship between the Participants and the owners of beneficial
interests in a global security.
Unless and until they are exchanged in whole or in part for certificated
securities in definitive form, the global securities may not be transferred
except as a whole by DTC to its nominee or by its nominee to DTC or another
nominee.
The securities of any series represented by a global security may be
exchanged for certificated securities in definitive form if:
- DTC notifies us that it is unwilling or unable to continue as depositary
for the global security or if at any time it ceases to be a clearing
agency registered under the Securities Exchange Act of 1934;
- the Company decides at any time not to have the securities of that series
represented by a global security and so notifies DTC; or
- in the case of debt securities, an event of default has occurred and is
continuing with respect to the debt securities.
If there is such an exchange, we will issue certificated securities in
authorized denominations and registered in such names as DTC directs. Subject to
the foregoing, the global securities are not exchangeable, except for a global
security(ies) of the same aggregate denomination to be registered in DTC's or
its nominee's name.
DESCRIPTION OF DEBT SECURITIES
GENERAL
As required by Federal law for all bonds and notes of companies that are
publicly offered, the debt securities are governed by documents called
"indentures." The indenture is a contract between American Financial Group and
the trustee named in the applicable prospectus supplement, which acts as trustee
for the debt securities. There may be more than one trustee under each indenture
for different series of debt securities. The trustee has two main roles. First,
the trustee can enforce your rights against us if we default. There are some
limitations on the extent to which the trustee acts on your behalf, described
later on page 10 under "Remedies If An Event of Default Occurs." Second, the
trustee may perform administrative duties for us, such as sending you interest
payments, transferring your debt securities to a new buyer if you sell, and
sending you notices. We anticipate that we will perform these duties with
respect to the debt securities.
The debt securities will be unsecured general obligations of the Company
and may include:
- senior debt securities, to be issued under the senior indenture;
- subordinated debt securities, to be issued under the subordinated
indenture; and
- junior subordinated debt securities, to be issued under the junior
subordinated indenture.
If issued, the junior subordinated debt securities will be purchased by the
Trust using proceeds from issuances of trust preferred securities. When we refer
to the indenture we mean the senior indenture, the subordinated indenture and
the junior subordinated indenture collectively, unless we indicate otherwise.
When we refer to the trustee we mean the senior trustee, the subordinated
trustee and the junior subordinated trustee collectively, unless we indicate
otherwise.
This section summarizes the general terms of the debt securities we may
offer. The prospectus supplement relating to any particular debt securities
offered will indicate whether the debt securities are senior debt securities,
subordinated debt securities or junior subordinated debt securities and will
describe the specific terms of the debt securities, which may be in addition to
or different from the general terms summarized in this section. The summary in
this section and in any prospectus supplement does not describe
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every aspect of the senior, subordinated or junior subordinated indenture or the
debt securities, and is subject to and qualified in its entirety by reference to
all the provisions of the applicable indenture and the debt securities. The
forms of the senior indenture, subordinated indenture and junior subordinated
indenture and the forms of the debt securities are or will be filed as exhibits
to or incorporated by reference in the registration statement. See "Where You
Can Find More Information" on page 2 for information on how to obtain a copy.
The prospectus supplement relating to any debt securities will describe the
following specific financial, legal and other terms particular to such debt
securities:
- the title of the debt securities;
- any limit on the aggregate principal amount of the debt securities;
- the date or dates on which the debt securities will mature;
- the annual rate or rates (which may be fixed or variable) at which the
debt securities will bear interest, if any, and the date or dates from
which the interest will accrue;
- the dates on which interest on the debt securities will be payable and
the regular record dates for those interest payment dates;
- any mandatory or optional sinking funds or analogous provisions or
provisions for redemption at the holder's option;
- the date, if any, after which and the price or prices at which the debt
securities may, in accordance with any option or mandatory redemption
provisions, be redeemed and the other detailed terms and provisions of
any such optional or mandatory redemption provision;
- if other than denominations of $1,000 and any integral multiple thereof,
the denomination in which the debt securities will be issuable;
- if other than the principal amount thereof, the portion of the principal
amount of the debt securities which will be payable upon the declaration
of acceleration of the maturity of those debt securities;
- any index or formula used to determine the amount of payment of principal
of, premium, if any, and interest on the debt securities;
- whether any debt securities will be issued in the form of a global
security, the wording of any legal legend to be placed on any global
security in addition to or instead of a legend describing the
restrictions on exchanges and transfers listed under "Global Securities"
on page 7 and, if different from those described in that subsection, any
circumstances under which a global security may be exchanged for debt
securities registered in the names of persons other than the depositary
for the global security or its nominee;
- whether the debt securities are senior, subordinated or junior
subordinated debt securities;
- the subordination provisions applicable to the subordinated debt
securities or junior subordinated debt securities; and
- any other material terms of the debt securities.
Those terms may vary from the terms described here. Thus, this summary also
is subject to and qualified by reference to the description of the particular
terms of your debt securities to be described in the prospectus supplement. The
prospectus supplement relating to your debt securities will be attached to the
front of this prospectus.
The indenture and its associated documents contain the full legal text of
the matters described in this section. The indenture and the debt securities are
governed by New York law.
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EVENTS OF DEFAULT
General. You will have special rights if an "event of default" occurs and
is not cured, as described later in this subsection. Under the indentures, the
term "event of default" means any of the following:
- We do not pay the principal or any premium on a debt security on its due
date;
- We do not pay interest on a debt security, in the case of senior debt
securities or subordinated debt securities, within 30 days of its due
date and, in the case of junior subordinated debt securities, within 60
days after its due date;
- We remain in breach of any restrictive covenant described in the
indenture for 60 days after we receive a notice stating we are in breach.
In the case of senior debt securities or subordinated debt securities,
the notice must be sent by either the trustee or direct holders of at
least 25% of the principal amount of outstanding debt securities of the
affected series, and in the case of the junior subordinated debt
securities, the notice must be sent by the trustee;
- We fail to pay an amount of debt (other than the debt securities)
totaling more than $10,000,000 ($15,000,000 in the case of junior
subordinated debt securities), our obligation to repay is accelerated by
our lenders, and this payment obligation remains accelerated for 60 days
after we receive notice of default as described in the previous
paragraph; or
- We become subject to judgments, orders or decrees requiring payments of
more than $10,000,000 ($15,000,000 in the case of junior subordinated
debt securities) and 60 days have passed during which a stay of
enforcement has not been in effect after we receive notes as described
two paragraphs above.
Remedies if an Event of Default Occurs. If an event of default has occurred
and has not been cured, the trustee or the direct holders of 25% in principal
amount of the outstanding debt securities of the affected series may declare the
entire principal amount of all the debt securities of that series to be due and
immediately payable. This is called a "declaration of acceleration of maturity."
Except in cases of default, where a trustee has some special duties, a
trustee is not required to take any action under the indenture at the request of
any direct holders unless the direct holders offer the trustee reasonable
protection from expenses and liability (called an "indemnity"). If reasonable
indemnity is provided, the direct holders of a majority in principal amount of
the outstanding debt securities of the relevant series may direct the time,
method and place of conducting any lawsuit or other formal legal action seeking
any remedy available to the trustee. These majority direct holders may also
direct the trustee in performing any other action under the indenture.
In general, before you bypass the trustee and bring your own lawsuit or
other formal legal action or take other steps to enforce your rights or protect
your interests relating to the debt securities, the following must occur:
- You must give the trustee written notice that an event of default has
occurred and remains uncured;
- The direct holders of 25% in principal amount of all outstanding debt
securities of the relevant series must make a written request that the
trustee take action because of the default, and must offer reasonable
indemnity to the trustee against the cost and other liabilities of taking
that action;
- The trustee must have not taken action for 60 days after receipt of the
above notice and offer of indemnity; and
- The trustee must not have received from direct holders of a majority in
principal amount of the outstanding debt securities of that series a
direction inconsistent with the written notice during the 60 day period
after receipt of the above notice.
However, you are entitled at any time to bring a lawsuit for the payment of
money due on your debt security on or after its due date.
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MODIFICATION
There are three types of changes we can make to the indentures and the debt
securities.
Changes Requiring Your Approval. First, there are changes that cannot be
made to your debt securities without your specific approval. Following is a list
of those types of changes:
- change the payment due date of the principal or interest on a debt
security;
- reduce any amounts due on a debt security;
- reduce the amount of principal payable upon acceleration of the maturity
of a debt security following a default;
- change the place of payment on a debt security;
- impair your right to sue for payment;
- reduce the percentage of direct holders of debt securities whose consent
is needed to modify or amend the indenture;
- reduce the percentage of direct holders of debt securities whose consent
is needed to waive compliance with certain provisions of the indenture or
to waive certain defaults; and
- modify any other aspect of the provisions dealing with modification and
waiver of the indenture.
Changes Requiring a Majority Vote. The second type of change to the
indentures and the debt securities is the kind that requires a vote in favor by
direct holders of debt securities owning a majority of the principal amount of
the particular series affected. The same majority vote would be required for us
to obtain a waiver of a past default. However, we cannot obtain a waiver of a
payment default or any other aspect of the indenture or the debt securities
listed in the first category described previously under "Changes Requiring Your
Approval" unless we obtain your individual consent to the waiver.
Changes Not Requiring Approval. The third type of change does not require
any vote by direct holders of debt securities. This type is limited to
clarifications and certain other changes that would not adversely affect holders
of the debt securities.
CONSOLIDATION, MERGER AND SALE OF ASSETS
We are generally permitted to consolidate or merge with another entity. We
are also permitted to sell or lease substantially all of our assets to another
company, or to buy or lease substantially all of the assets of another entity.
However, unless AFG survives the consolidation or merger, we may not take any of
these actions unless the following conditions (among others) are met:
- Where we merge out of existence or sell or lease substantially all our
assets, the other entity must be a corporation, partnership or trust
organized under the laws of a State or the District of Columbia or under
federal law, and it must agree to be legally responsible for the debt
securities.
- The merger, sale of assets or other transaction must not cause a default
on the debt securities, and we must not already be in default (unless the
merger or other transaction would cure the default). For purposes of this
no-default test, a default would include an event of default.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Debt securities will be issuable in definitive, registered form. Debt
securities are also issuable in temporary or permanent global form. See
"Description of the Securities We May Offer -- Book-Entry System" on page 6.
You may have your debt securities broken into more debt securities of
smaller denominations or combined into fewer debt securities of larger
denominations, as long as the total principal amount is not changed. This is
called an "exchange."
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You may exchange or transfer debt securities at the office of the trustee.
The trustee acts as our agent for registering debt securities in the names of
holders and transferring debt securities. We may appoint another entity or
perform this role ourselves. The entity performing the role of maintaining the
list of registered direct holders is called the "security registrar." It will
also perform transfers. You will not be required to pay a service charge to
transfer or exchange debt securities, but you may be required to pay for any tax
or other governmental charge associated with the exchange or transfer. The
transfer or exchange will only be made if the security registrar is satisfied
with your proof of ownership.
If the debt securities are redeemable and we redeem less than all of the
debt securities of a particular series, we may block the transfer or exchange of
those debt securities during the period beginning 15 days before the day we mail
the notice of redemption and ending on the day of that mailing, in order to
freeze the list of holders to prepare the mailing. We may also refuse to
register transfers or exchanges of debt securities selected for redemption,
except that we will continue to permit transfers and exchanges of the unredeemed
portion of any debt security being partially redeemed.
PAYMENT AND PAYING AGENTS
We will pay interest to you if you are a direct holder listed in the
trustee's records at the close of business on a particular day in advance of
each due date for interest, even if you no longer own the debt security on the
interest due date. That particular day, usually about two weeks in advance of
the interest due date, is called the "regular record date" and will be stated in
the prospectus supplement. Holders buying and selling debt securities must work
out between them how to compensate for the fact that we will pay all the
interest for an interest period to the one who is the registered holder on the
regular record date. The most common manner is to adjust the sales price of the
debt securities to prorate interest fairly between buyer and seller. This
prorated interest amount is called "accrued interest."
In the past, AFG has chosen to pay interest by mailing checks. AFG may also
choose to pay interest, principal and any other money due on the debt securities
at the corporate trust office of the trustee. You must make arrangements to have
your payments picked up at or wired from the trust office.
We may also arrange for additional payment offices, and may cancel or
change these offices, including our use of the trustee's corporate trust office.
These offices are called "paying agents." We may also choose to act as our own
paying agent. We must notify you of changes in the paying agents for any
particular series of debt securities.
NOTICES
Notices to holders of debt securities will be given by mail to the
addresses of such holders as they appear in the security register.
PROVISIONS APPLICABLE TO JUNIOR SUBORDINATED DEBT SECURITIES
Events of Default. In addition to the events described above under
"Description of Debt Securities -- Events of Default" applicable to all debt
securities, the voluntary or involuntary dissolution, winding up or termination
of the Trust that owns the series of junior subordinated debt securities will
constitute an event of default for any series of junior subordinated debt
securities issued pursuant to the junior subordinated indenture, except in
connection with:
- the distribution of such junior subordinated debt securities to holders
of trust securities of the Trust;
- the redemption of all of the trust securities of the Trust; and
- mergers, consolidations or similar events permitted by the amended
declaration of the Trust.
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The holders of at least a majority in aggregate liquidation amount of the
trust preferred securities of the Trust may waive any default or event of
default with respect to such series and its consequences, except defaults or
events of default that:
- are not waivable under the junior subordinated indenture (such as
defaults regarding payment of principal, premium, if any, or interest);
or
- require the consent or vote of greater than a majority in principal
amount of the holders of junior subordinated debt securities to be waived
under the junior subordinated indenture, in which case the event of
default may only be waived by the holders of the same "super-majority" in
liquidation amount of the trust preferred securities.
Any such waiver shall cure such default or event of default. If, under the
amended declaration of the Trust, an event of default has occurred and is
attributable to the failure of the Company to pay principal, premium, if any, or
interest on, such junior subordinated debt securities, then each holder of the
trust preferred securities of the Trust may sue the Company or seek other
remedies, to force payment to such holder of the principal of, premium, if any,
or interest on, such junior subordinated debt securities having a principal
amount equal to the aggregate liquidation amount of the trust preferred
securities held by such holder.
Modification of Junior Subordinated Indenture. Under the junior
subordinated indenture, the Company and the indenture trustee may change certain
rights of holders of a series of junior subordinated debt securities with the
written consent of the holders of a majority in principal amount of the series
of junior subordinated debt securities that are affected. Any such change will
be subject to the limitations described above under "Modification" on page 12
applicable to the other debt securities. If the property trustee of the Trust,
as a holder of junior subordinated debt securities, is required to consent to
any amendment, modification or termination of the junior subordinated indenture,
the property trustee will request directions from the holders of the trust
securities of the Trust.
Subordination of Junior Subordinated Debt Securities. The junior
subordinated debt securities will be unsecured and will be subordinate and
junior in priority of payment to certain of the Company's other indebtedness to
the extent described in a prospectus supplement. The junior subordinated
indenture will not limit the amount of junior subordinated debt securities which
the Company may issue, nor does it limit the Company from issuing any other
secured or unsecured debt.
DESCRIPTION OF THE TRUST PREFERRED SECURITIES
GENERAL
The amended declaration of the Trust will authorize the trustees to issue,
on behalf of the Trust, one series of trust preferred securities. The Trust will
use the proceeds from the sale of the trust preferred securities to purchase a
series of junior subordinated debt securities issued by the Company. The
property trustee will hold these junior subordinated debt securities in trust
for the benefit of the holders of such trust preferred securities.
This section summarizes the general terms of the preferred securities that
the Trust may offer. The prospectus supplement relating to any particular
preferred securities offered by the Trust will describe the specific terms of
the preferred securities, which may be in addition to or different from the
general terms summarized in this section. The summary in this section and in any
prospectus supplement does not describe every aspect of the trust preferred
securities offered and is subject to and qualified in its entirety by reference
to all the provisions of the amended declaration and the trust preferred
securities. The forms of the amended declarations and the trust preferred
securities are or will be filed as exhibits to or incorporated by reference in
the registration statement.
The Company will guarantee the payments of distributions and payments on
redemption or liquidation with respect to the trust preferred securities, but
only to the extent the Trust has funds available to make
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those payments and has not made the payments. The trust preferred securities
guarantee by the Company is described in more detail below under "Description of
the Trust Preferred Securities Guarantee."
The assets of the Trust available for distribution to the holders of its
trust preferred securities will be limited to payments from the Company under
the series of junior subordinated debt securities held by the Trust. If the
Company fails to make a payment on the junior subordinated debt securities, the
Trust will not have sufficient funds to make related payments, including
distributions, on its trust preferred securities.
The trust preferred securities guarantee, when taken together with the
Company's obligations under the series of junior subordinated debt securities,
the junior subordinated indenture and the amended declaration of the Trust, will
provide a full and unconditional guarantee of amounts due on the trust preferred
securities issued by the Trust.
The prospectus supplement relating to any particular preferred securities
offered by the Trust will describe the specific terms of the preferred
securities, which may be in addition to or different from the general terms
summarized in this section. In particular, the prospectus supplement will
describe:
- the name of such trust preferred securities;
- the designation of the trust preferred securities;
- the dollar amount and number of trust preferred securities issued;
- the annual distribution rate(s) or method of determining such rate(s),
the payment date(s) and the record dates used to determine the holders
who are to receive distributions;
- the date(s) or the method to determine the date(s) from which
distributions shall be cumulative;
- the optional redemption provisions, if any, including the prices, time
periods and other terms and conditions for which such trust preferred
securities shall be purchased or redeemed, in whole or in part;
- the optional right of the Trust to defer quarterly distributions on the
preferred securities;
- the terms and conditions, if any, upon which the applicable series of
junior subordinated debt securities and the related trust preferred
securities guarantee may be distributed to holders of the trust preferred
securities upon liquidation, dissolution, termination or winding up of
the Trust;
- any voting rights of the trust preferred securities other than those
described in this section;
- any securities exchange on which the trust preferred securities will be
listed;
- whether the trust preferred securities are to be issued in book-entry
form and represented by one or more global certificates, and if so, the
depositary for the global certificates and the specific terms of the
depositary arrangements;
- any other relevant rights, preferences, privileges, limitations or
restrictions of such trust preferred securities; and
- any applicable United States Federal income tax considerations.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
The amended declaration of the Trust will state that the Trust shall be
dissolved:
- on the expiration of the term of the Trust;
- upon the bankruptcy, dissolution or liquidation of the Company;
- upon a change in law requiring the Trust to register as an investment
company under the Investment Company Act of 1940;
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- unless the Company takes certain actions, upon a change in the law
resulting in the Trust being subject to United States Federal income tax
on income received from the junior subordinated debt securities held by
the Trust, the interest payable by the Company on the junior subordinated
debt securities not being deductible for United State Federal income tax
purposes, or the Trust being subject to more than a de minimus amount of
other taxes;
- upon the redemption, conversion or exchange of all of the trust
securities of the Trust;
- upon the repayment of all of the junior subordinated debt securities held
by the Trust or at such time as no such junior subordinated debt
securities are outstanding;
- upon entry of a court order for the dissolution of the Trust; or
- upon the election of the Company to terminate the Trust and distribute
the related junior subordinated debt securities directly to the holders
of the trust securities.
In the event of a dissolution, after the Trust pays all amounts owed to
creditors, the holders of the trust securities will be entitled to receive:
- cash equal to the aggregate liquidation amount of each trust security
specified in an accompanying prospectus supplement, plus accumulated and
unpaid distributions to the date of payment; or
- junior subordinated debt securities in an aggregate principal amount
equal to the aggregate liquidation amount of the trust securities.
If the Trust cannot pay the full amount due on its trust securities because
insufficient assets are available for payment, then the amounts payable by the
Trust on its trust securities shall be paid pro rata. However, if an event of
default under the related indenture has occurred, the total amounts due on the
trust preferred securities will be paid before any distribution on the trust
common securities.
EVENTS OF DEFAULT
An event of default under the junior subordinated indenture relating to a
series of junior subordinated debt securities is an event of default under the
amended declaration of the Trust. We have described these events of default
under the sections entitled "Description of Debt Securities -- Provisions
Applicable to All Debt Securities -- Events of Default" on page 10 and
" -- Provisions Applicable to Junior Subordinated Debt Securities Events of
Default" on page 12.
The Company and the regular trustees of the Trust must file annually with
the property trustee for the Trust a certificate stating whether or not they are
in compliance with all the applicable conditions and covenants under the related
amended declaration.
Upon the occurrence of an event of default, the property trustee of the
Trust, as the sole holder of the junior subordinated debt securities held by the
Trust, will have the right under the junior subordinated indenture to declare
the principal of, premium, if any, and interest on such junior subordinated debt
securities to be immediately due and payable.
If a property trustee fails to enforce its rights under the amended
declaration or the junior subordinated indenture then, to the fullest extent
permitted by law, and subject to the terms of the amended declaration and the
junior subordinated indenture, any holder of trust preferred securities may sue
the Company, or seek other remedies, to enforce the property trustee's rights
under the amended declaration or the junior subordinated indenture without first
instituting a legal proceeding against such property trustee or any other
person.
If the Company fails to pay principal, premium, if any, or interest on a
series of junior subordinated debt securities when payable, then a holder of
such trust preferred securities may directly sue the Company or seek other
remedies, to collect its pro rata share of payments owned.
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REMOVAL AND REPLACEMENT OF TRUSTEES
Only the holders of trust common securities may remove or replace the
trustees of the Trust. The resignation or removal of any trustee and the
appointment of a successor trustee will be effective only on the acceptance of
appointment by the successor trustee in accordance with the provisions of the
amended declaration for the Trust.
MERGERS, CONSOLIDATIONS, CONVERSIONS OR AMALGAMATIONS OF THE TRUST
The Trust may not consolidate, amalgamate, merge with or into, or be
converted into or replaced by or convey, transfer or lease their properties and
assets substantially as an entirety to any other corporation or other body,
except as described below. The Trust may, with the consent of a majority of its
regular trustees and without the consent of the holders of its trust securities
or the other trustees, engage in any of the merger events referred to above
under the conditions set forth in the declaration and described in a prospectus
supplement.
In addition, unless all of the holders of the trust preferred securities
and trust common securities approve otherwise, the Trust may not consent to or
engage in a merger event if that event would cause the Trust or the successor
entity to be classified other than as a grantor trust for United States federal
income tax purposes.
INFORMATION CONCERNING DUTIES OF THE PROPERTY TRUSTEE
For matters relating to compliance with the Trust Indenture Act, the
property trustee of the Trust will have all of the duties and responsibilities
of an indenture trustee under the Trust Indenture Act. The property trustee,
other than during the occurrence and continuance of an event of default under
the Trust, undertakes to perform only such duties as are specifically set forth
in the amended declaration and, upon an event of default, must use the same
degree of care and skill as a prudent person would exercise or use in the
conduct of his or her own affairs. Subject to this provision, the property
trustee is under no obligation to exercise any of the powers given it by the
applicable amended declaration at the request of any holder of trust preferred
securities unless it is offered reasonable security or indemnity against the
costs, expenses and liabilities that it might incur. However, the holders of the
trust preferred securities will not be required to offer such an indemnity where
the holders, by exercising their voting rights, direct the property trustee to
take any action following an event of default.
MISCELLANEOUS
The regular trustees of the Trust are authorized and directed to conduct
the affairs of the Trust and to operate the Trust in such a way that:
- it will not be deemed to be an "investment company" required to be
registered under the Investment Company Act;
- it will be classified as a grantor trust for United States federal income
tax purposes; and
- the junior subordinated debt securities held by it will be treated as
indebtedness of the Company for United States federal income tax
purposes.
The Company and the regular trustees of the Trust are authorized to take
any action (so long as it is consistent with applicable law or the certificate
of trust or amended declaration) that the Company and the regular trustees of
the Trust determine to be necessary or desirable for such purposes.
Holders of trust preferred securities have no preemptive or similar rights.
The Trust may not borrow money, issue debt, execute mortgages or pledge any
of its assets.
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GOVERNING LAW
The amended declaration and the related trust preferred securities will be
governed by and construed in accordance with the laws of the State of Delaware
and the Trust Indenture Act.
DESCRIPTION OF THE TRUST PREFERRED SECURITIES GUARANTEE
GENERAL
The Company will execute a trust preferred securities guarantee, which
benefits the holders of trust preferred securities, at the time that the Trust
issues those trust preferred securities. The trust preferred securities
guarantee will be qualified as an indenture under the Trust Indenture Act and
will be held for the benefit of holders of trust preferred securities by a
guarantee trustee meeting the requirements of the Trust Indenture Act. Unless
otherwise indicated in a prospectus supplement, DTC will be the guarantee
trustee.
GUARANTEE PAYMENT
This section summarizes the general terms of the guarantees that the
Company will provide in respect of the preferred securities that the Trust may
offer. The summary in this section does not describe every aspect of the
guarantee and is subject to and qualified in its entirety by reference to any
description in the related prospectus supplement and to all the provisions of
the guarantee agreements. The form of the guarantee agreement is filed as an
exhibit to the registration statement.
The Company will irrevocably agree, as described in the trust preferred
securities guarantee, to pay in full, to the holders of the trust preferred
securities issued by the Trust, the following trust preferred securities
guarantee payments when due to the extent not paid by the Trust, regardless of
any defense, right of set-off or counterclaim which the Trust may have or
assert:
- any accrued and unpaid distributions required to be paid on the trust
preferred securities, to the extent that the Trust has funds available to
make the payment;
- the redemption price, to the extent that the Trust has funds available to
make the payment; and
- upon a voluntary or involuntary dissolution and liquidation of the Trust
(other than in connection with a distribution of junior subordinated debt
securities to holders of such trust preferred securities or the
redemption of all such trust preferred securities), the lesser of
(1) the aggregate of the liquidation amount specified in the
prospectus supplement for each trust preferred security plus all
accrued and unpaid distributions on the trust preferred securities
to the date of payment, to the extent the Trust has funds
available to make the payment and
(2) the amount of assets of the Trust remaining available for
distribution to holders of its trust preferred securities upon a
dissolution and liquidation of the Trust ("Liquidation Payment").
The Company's obligation to make a trust preferred securities guarantee
payment may be satisfied by directly paying the required amounts to the holders
of the trust preferred securities or by causing the Trust to pay the amounts to
the holders.
The combined operation of the Company's obligations under the junior
subordinated indenture and the trust preferred securities guarantee and amended
declaration has the effect of providing a full, irrevocable and unconditional
guarantee of the Trust's obligations under its trust preferred securities.
STATUS OF THE TRUST PREFERRED SECURITIES GUARANTEE
The trust preferred securities guarantee will constitute an unsecured
obligation of the Company and will rank:
- subordinated and junior in right of payment to all the Company's other
liabilities except those liabilities made equal or subordinate to the
guarantee by their terms; and
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- senior to the following:
(1) all capital stock (other than the most senior preferred shares
issued, from time to time, by the Company, which will rank equally
with the guarantee) issued by the Company; and
(2) any guarantee entered into by the Company relating to its capital
stock (other than the most senior preferred shares issued, from
time to time, by the Company).
The trust preferred securities guarantee will rank equally with obligations
under other guarantee agreements that the Company may enter into from time to
time if both:
- the agreements are in substantially the form of the preferred
securities guarantee and provide for comparable guarantees by the
Company of payment on preferred securities issued by other trusts or
financing vehicles of the Company; and
- the debt relating to those preferred securities are subordinated,
unsecured indebtedness of the Company.
By acceptance of the trust preferred securities, holders accept the
subordination provisions and other terms of the trust preferred securities
guarantee. The trust preferred securities guarantee will constitute a guarantee
of payment and not of collection (in other words, the holder of the guaranteed
security may sue the Company, or seek other remedies, to enforce its rights
under the trust preferred securities guarantee without first suing any other
person or entity). The trust preferred securities guarantee will not be
discharged except by payment of the guarantee payments in full to the extent not
previously paid or upon distribution of the corresponding series of junior
subordinated debt securities to the holders of trust preferred securities
pursuant to the amended declaration.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not adversely affect the rights
of holders of trust preferred securities in any material respect (in which case
no consent of such holders will be required), a trust preferred securities
guarantee may only be amended with the prior approval of the holders of a
majority in aggregate liquidation amount of such trust preferred securities. All
guarantees and agreements contained in the trust preferred securities guarantee
will be binding on the Company's successors, assigns, receivers, trustees and
representatives and are for the benefit of the holders of the applicable trust
preferred securities.
TRUST PREFERRED SECURITIES GUARANTEE EVENTS OF DEFAULT
An event of default under the trust preferred securities guarantee occurs
if the Company fails to make any of its required payments or perform its
obligations under the trust preferred securities guarantee.
The holders of at least a majority in aggregate liquidation amount of the
trust preferred securities will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the guarantee
trustee or to direct the exercise of any trust or power given to the guarantee
trustee under the trust preferred securities guarantee.
INFORMATION CONCERNING DUTIES OF THE TRUST PREFERRED GUARANTEE TRUSTEE
The guarantee trustee under the trust preferred securities guarantee, other
than during the occurrence and continuance of an event of default under the
trust preferred securities guarantee, will only perform the duties that are
specifically described in the trust preferred securities guarantee. After such a
default, the trust preferred guarantee trustee will exercise the same degree of
care and skill as a prudent person would exercise or use in the conduct of his
or her own affairs. Subject to this provision, the guarantee trustee is under no
obligation to exercise any of its powers as described in the trust preferred
securities guarantee at the request of any holder of covered trust preferred
securities unless it is offered reasonable indemnity against the costs, expenses
and liabilities that it might incur.
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TERMINATION OF THE TRUST PREFERRED SECURITIES GUARANTEE
The trust preferred securities guarantee will terminate once the trust
preferred securities are paid in full or upon distribution of the corresponding
series of junior subordinated debt securities to the holders of the trust
preferred securities. The trust preferred securities guarantee will continue to
be effective or will be reinstated if at any time any holder of trust preferred
securities must restore payment of any sums paid under such trust preferred
securities or such trust preferred securities guarantee.
GOVERNING LAW
The trust preferred securities guarantee will be governed by and construed
in accordance with the laws of the State of New York and the Trust Indenture
Act.
RELATIONSHIP AMONG THE TRUST PREFERRED SECURITIES,
THE TRUST PREFERRED SECURITIES GUARANTEE AND THE
JUNIOR SUBORDINATED DEBT SECURITIES HELD BY THE TRUST
Payments of distributions and redemption and liquidation payments due on
the trust preferred securities, to the extent the Trust has funds available for
the payments, will be guaranteed by the Company to the extent described above
under "Description of the Trust Preferred Securities Guarantee." The combined
operation of the Company's obligations under the trust preferred securities
guarantee, amended declaration and the junior subordinated indenture has the
effect of providing a full, irrevocable and unconditional guarantee of the
Trust's obligations under its trust preferred securities.
As long as the Company makes payments of interest and other payments when
due on the junior subordinated debt securities held by the Trust, such payments
will be sufficient to cover the payment of distributions and redemption and
liquidation payments due on the trust preferred securities issued by the Trust
because:
- the aggregate principal amount of the junior subordinated debt securities
will be equal to the sum of the aggregate liquidation amount of the trust
securities;
- the interest rate and interest and other payment dates on the junior
subordinated debt securities will match the distribution rate and
distribution and other payment dates for the trust preferred securities;
- the Company will pay for any and all costs, expenses and liabilities of
the Trust except the Trust's obligations under its trust preferred
securities; and
- the amended declaration provides that the Trust will not engage in any
activity that is not consistent with the limited purposes of the Trust.
If and to the extent that the Company does not make payments on such junior
subordinated debt securities, the Trust will not have funds available to make
payments of distributions or other amounts due on its trust preferred
securities. In those circumstances, you will not be able to rely upon the trust
preferred securities guarantee for payment of these amounts. Instead, you may
directly sue the Company or seek other remedies to collect your pro rata share
of payments owed. If you sue the Company to collect payment, then the Company
will assume your rights as a holder of trust preferred securities under the
amended declaration to the extent the Company makes a payment to you in any such
legal action.
A holder of any trust preferred security may sue the Company, or seek other
remedies, to enforce its rights under the trust preferred securities guarantee
without first suing the guarantee trustee, the Trust or any other person or
entity.
DESCRIPTION OF COMMON STOCK
This section summarizes the general terms of the common stock that we may
offer. The prospectus supplement relating to the common stock offered will set
forth the number of shares offered, the initial
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offering price and recent market prices, dividend information and any other
relevant information. The summary in this section and in the prospectus
supplement does not describe every aspect of the common stock and is subject to
and qualified in its entirety by reference to all the provisions of our Amended
and Restated Articles of Incorporation and Code of Regulations and to the
provisions of the Ohio General Corporation Law.
The total number of authorized shares of AFG common stock is 200,000,000,
without par value. 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.
As of June 15, 1999, there were 59,750,920 shares of common stock issued
and outstanding, including 1,366,812 shares held by a subsidiary for
distribution to certain creditors. All shares of common stock have equal rights
to participate in dividends and, in the event of liquidation, assets available
for distribution to shareholders, subject to any preference established with
respect to preferred stock. Shares of common stock carry no conversion
subscription rights, and are not subject to redemption. All outstanding shares
of common stock are, and any shares of common stock issued upon conversion of
any convertible securities will be, fully paid and nonassessable. The Company
may pay dividends on the common stock when, as and if declared by the Board of
Directors. Dividends may be declared in the discretion of the Board of Directors
from funds legally available therefore, subject to restrictions under agreements
related to Company indebtedness.
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 law.
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 outstanding shares of common stock are listed on the New York Stock
Exchange and trade under the symbol "AFG." AFG acts as its own transfer agent
and registrar.
PLAN OF DISTRIBUTION
AFG and the Trust may sell the securities (a) through underwriters or
dealers, (b) directly to one or more purchasers, or (c) through agents. The
prospectus supplement will include the names of underwriters, dealers or agents
retained. The prospectus supplement also will include the purchase price of the
securities, AFG's proceeds from the sale, any underwriting discounts or
commissions and other items constituting underwriters' compensation, and any
securities exchanges on which the securities may be listed.
The underwriters will acquire the securities for their own account. They
may resell the securities in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The obligations of the underwriters to purchase the
securities will be subject to certain conditions. The underwriters will be
obligated to purchase all the securities offered if any of the securities are
purchased. Any initial public offering price and any discounts or concessions
allowed or re-allowed or paid to dealers may be changed from time to time.
Underwriters, dealers, and agents that participate in the distribution of
the securities may be underwriters as defined in the Securities Act, and any
discounts or commissions received by them from AFG and any profit on the resale
of the securities by them may be treated as underwriting discounts and
commissions under the Securities Act.
-20-
23
AFG may have agreements with the underwriters, dealers, and agents to
indemnify them against certain civil liabilities, including liabilities under
the Securities Act, or to contribute with respect to payments which the
underwriters, dealers or agents may be required to make.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, AFG or its subsidiaries in the ordinary course of their
business.
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
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedules included in our Annual Report on Form 10-K
for the year ended December 31, 1998, as set forth in their report, which is
incorporated by reference in this prospectus and elsewhere in the registration
statement. Our financial statements and schedules are incorporated by reference
in reliance on Ernst & Young LLP's report, given on their authority as experts
in accounting and auditing.
-21-
24
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:
Securities and Exchange Commission registration fee*........ $125,100
New York Stock Exchange listing fee......................... 45,000
Legal fees and expenses..................................... 50,000
Accounting fees and expenses................................ 5,000
Printing and engraving expenses............................. 75,000
Trustee's fees and expenses................................. 15,000
Rating Agencies' fees....................................... 50,000
Blue Sky fees and expenses.................................. 15,000
Miscellaneous............................................... 19,900
--------
TOTAL............................................. $400,000
========
- ---------------
* Actual; other expenses are estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Ohio Revised Code, Section 1701.13(E), allows indemnification by the
Company 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 Company, by reason of the fact
that he is or was a director, officer, employee or agent of the Company, 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
Company 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 Company, 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 Company 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 Company's Code of Regulations
extends such indemnification.
The Company 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 Company and of
the companies which are, directly or indirectly, more than 50% owned by the
Company. 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 Company 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.
The Declaration will provide that no Property Trustee or any of its
Affiliates, Delaware Trustee or any of its Affiliates, or any officer, director,
shareholder, member, partner, employee, representative, custodian, nominee or
agent of the Property Trustee or the Delaware Trustee (each a "Fiduciary
Indemnified Person"), and no Regular Trustee, Affiliate of any Regular Trustee,
or any officer, director, shareholder, member, partner, employee, representative
or agent of any regular Trustee or any Affiliate thereof, or any employee or
II-1
25
agent of the Trust or its Affiliates (each a "Company Indemnified Person") shall
be liable, responsible or accountable in damages or otherwise to the Trust or
any officer, director, shareholder, partner, member, representative, employee or
agent of the Trust or its Affiliates or to any holder of Preferred Securities
for any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Fiduciary Indemnified Person or Company Indemnified
Person in good faith on behalf of the Trust and in a manner such Fiduciary
Indemnified Person or Company Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Fiduciary Indemnified Person
or Company Indemnified Person by such Declaration or by law, except that a
Fiduciary Indemnified Person or Company Indemnified Person shall be liable for
any such loss, damage or claim incurred by reason of such Fiduciary Indemnified
Person's or Company Indemnified Person's gross negligence or willful misconduct
with respect to such acts or omissions.
The Amended and Restated Declaration of the Trust (the "Declaration") will
also provide that to the full extent permitted by law, the Company shall
indemnify any Company Indemnified Person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Trust) by reason of the fact that he is or
was a Company Indemnified Person against expense (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interest of the Trust, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The Declaration
will also provide that to the full extent permitted by law, the Company shall
indemnify any Company Indemnified Person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit by or
in the right of the Trust to procure a judgment in its favor by reason of the
fact that he is or was a Company Indemnified Person against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Trust and except that no such indemnification shall be made in respect of
any claim, issue or manner as to which such Company Indemnified Person shall
have been adjudged to be liable to the Trust unless and only to the extent that
the Court of Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which Court of
Chancery or such other court shall deem proper. The Declaration will further
provide that expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in the immediately
preceding two sentences shall be paid by the Company in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such Company Indemnified Person to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Company as authorized in the Declaration.
The directors and officers of the Company and the Regular Trustees are
covered by insurance policies indemnifying them against certain liabilities,
including certain liabilities arising under the Securities Act of 1933 which
might be incurred by them in such capacities and against which they cannot be
indemnified by the Company or the Trust. Any agents, dealers or underwriters who
execute any of the agreements filed as or incorporated by reference as Exhibit 1
to this Registration Statement will agree to indemnify the Company's directors
and their officers and the Trustees who signed the Registration Statement
against certain liabilities that may arise under the Securities Act of 1933 with
respect to information furnished to the Company or the Trust by or on behalf of
any such indemnifying party.
The Declaration will also provide that the Company shall indemnify each
Fiduciary Indemnified Person against any loss, liability or expense incurred
with out negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of the trust or trusts under the Trust,
including the costs and expenses (including reasonable legal fees and expenses)
of defending itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers or duties
thereunder.
II-2
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ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
EXHIBIT NO. DESCRIPTION OF DOCUMENT
- ----------- -----------------------
1* Form of Underwriting Agreement
4.1** Amended and Restated Articles of Incorporation of American
Financial Group, Inc. (incorporated by reference to Exhibit
3(a) of American Financial Group, Inc.'s Annual Report on
Form 10-K for 1997)
4.2** Code of Regulations of American Financial Group, Inc.
(incorporated by reference to Exhibit 3(b) of American
Financial Group, Inc.'s Annual Report on Form 10-K for 1997)
4.3** Form of Senior Indenture (incorporated by reference to
Exhibit 4.3 to the Registrants' Registration Statement on
Form S-3, Registration No. 333-21995)
4.4** Form of Junior Subordinated Indenture (incorporated by
reference to Exhibit 4.4 to the Registrants' Registration
Statement on Form S-3, Registration No. 333-21995)
4.5 Form of Subordinated Indenture
4.6* Form of Preferred Securities Guarantee Agreement by American
Financial Group, Inc.
4.7* Form of Debt Security
4.8* Form of Preferred Security
4.9 Certificate of Trust of American Financial Capital Trust II
4.10 Declaration of Trust of American Financial Capital Trust II
5.1 Opinion of Keating, Muething & Klekamp, P.L.L.
5.2 Opinion of Morris, Nichols, Arsht & Tunnell
8* 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. (contained in
Exhibit 5.1)
23.3 Consent of Morris, Nichols, Arsht & Tunnell (contained in
Exhibit 5.2)
23.4 Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
24 Powers of Attorney (contained on the signature pages)
25.1** Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of Firstar Bank, N.A., as
Trustee under the Senior Indenture (incorporated by
reference to Exhibit 25.1 of the Registrants' Registration
Statement on Form S-3, Registration No. 333-21995)
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 Junior Subordinated Indenture
(incorporated by reference to Exhibit 25.2 of the
Registrants' Registration Statement on Form S-3,
Registration No. 333-21995)
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 (incorporated by reference to Exhibit 25.3 of the
Registrants' Registration Statement on Form S-3,
Registration No. 333-21995)
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 (incorporated by reference to
Exhibit 25.4 of the Registrants' Registration Statement on
Form S-3, Registration No. 333-21995)
25.5 Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of Firstar Bank, N.A., as
Trustee under the Subordinated Indenture
II-3
27
- ---------------
* To be filed as an exhibit to a Current Report on Form 8-K.
** Incorporated by reference from other documents filed with the Commission as
indicated.
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 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.
II-4
28
(d) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(e) The undersigned Registrant hereby undertakes that
(1) for purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective; and
(2) for the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(f) The undersigned Registrant hereby undertakes to file, if necessary, an
application for the purpose of determining the eligibility of the Trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act of 1939 in
accordance with the rules and regulations prescribed by the Securities and
Exchange Commission under Section 305(b)(2) of such Act.
II-5
29
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 29th day of June,
1999.
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 Samuel J. Simon, or any of them, his true and lawful attorney and
agent, to sign all amendments to this Registration Statement as well as any
related registration statement (or amendment thereto) filed pursuant to Rule
462(b) promulgated under the Securities Act of 1933.
SIGNATURE CAPACITY DATE
--------- -------- ----
* Carl H. Lindner Chairman of the Board and Chief June 29, 1999
- -------------------------------
Carl H. Lindner Executive Officer and a Director
* Carl H. Lindner III Director June 29, 1999
- -------------------------------
Carl H. Lindner III
* S. Craig Lindner Director June 29, 1999
- -------------------------------
S. Craig Lindner
* Keith E. Lindner Director June 29, 1999
- -------------------------------
Keith E. Lindner
* James E. Evans Director June 29, 1999
- -------------------------------
James E. Evans
* Theodore H. Emmerich Director June 29, 1999
- -------------------------------
Theodore H. Emmerich
* William R. Martin Director June 29, 1999
- -------------------------------
William R. Martin
* Fred J. Runk Senior Vice President and Treasurer June 29, 1999
- -------------------------------
Fred J. Runk (Principal Financial and Accounting
Officer)
II-6
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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 June
29, 1999.
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 Samuel J. Simon, or any of them, his true and lawful attorney and
agent, to sign all amendments to this Registration Statement as well as any
related registration statement (or amendment thereto) filed pursuant to Rule
462(b) promulgated under the Securities Act of 1933.
AMERICAN FINANCIAL CAPITAL TRUST II
By:*
-----------------------------------
James C. Kennedy, as Trustee
By:*
-----------------------------------
Thomas E. Mischell, as
Trustee
II-7
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Exhibit 4.5
================================================================================
AMERICAN FINANCIAL GROUP, INC.,
ISSUER
AND
FIRSTAR BANK, N.A.
TRUSTEE
INDENTURE
DATED AS OF , 1999
SUBORDINATED DEBT SECURITIES
================================================================================
2
TABLE OF CONTENTS
-----------------
ARTICLE 1. DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION..........................................................................1
Section 1.1 Definitions............................................................................1
Section 1.2 Compliance Certificates and Opinions...................................................8
Section 1.3 Form of Documents Delivered to Trustee.................................................8
Section 1.4 Acts of Holders........................................................................9
Section 1.5 Notices, Etc., to Trustee and Company.................................................10
Section 1.6 Notice to Holders; Waiver.............................................................10
Section 1.7 Conflict with Trust Indenture Act.....................................................11
Section 1.8 Effect of Headings and Table of Contents..............................................11
Section 1.9 Successors and Assigns................................................................11
Section 1.10 Separability Clause...................................................................11
Section 1.11 Benefits of Indenture.................................................................11
Section 1.12 Governing Law.........................................................................11
Section 1.13 Non-Business Day......................................................................12
Section 1.14 Immunity of Incorporators, Shareholders, Officers and Directors.......................12
ARTICLE 2. DEBT SECURITY FORM.............................................................................13
Section 2.1 Form of Debt Securities...............................................................13
Section 2.2 Form of Trustee's Certificate of Authentication.......................................14
Section 2.3 Debt Securities in Global Form........................................................14
ARTICLE 3. THE DEBT SECURITIES............................................................................14
Section 3.1 Title; Payment and Terms..............................................................14
Section 3.2 Denominations.........................................................................17
Section 3.3 Execution, Authentication, Delivery and Dating........................................17
Section 3.4 Temporary Debt Securities and Exchange of Debt Securities.............................18
Section 3.5 Registration, Registration of Transfer and Exchange...................................19
Section 3.6 Mutilated, Destroyed, Lost and Stolen Debt Securities.................................21
Section 3.7 Payment of Interest; Interest Rights Preserved........................................22
Section 3.8 Persons Deemed Owners.................................................................23
Section 3.9 Cancellation..........................................................................24
Section 3.10 Computation of Interest...............................................................24
ARTICLE 4. SATISFACTION AND DISCHARGE.....................................................................24
Section 4.1 Satisfaction and Discharge of Debt Securities of any Series...........................24
Section 4.2 Application of Trust Money............................................................26
Section 4.3 Satisfaction and Discharge of Indenture...............................................27
Section 4.4 Reinstatement.........................................................................27
3
- ii -
ARTICLE 5. REMEDIES.......................................................................................28
Section 5.1 Events of Default.....................................................................28
Section 5.2 Acceleration of Maturity; Rescission and Annulment....................................30
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.......................31
Section 5.4 Trustee May File Proofs of Claim......................................................32
Section 5.5 Trustee May Enforce Claims Without
Possession of Debt Securities.........................................................33
Section 5.6 Application of Money Collected........................................................33
Section 5.7 Limitation on Suits...................................................................33
Section 5.8 Unconditional Right of Holders to Receive
Principal (and Premium, if any) and Interest, if any..................................34
Section 5.9 Restoration of Rights and Remedies....................................................34
Section 5.10 Rights and Remedies Cumulative........................................................35
Section 5.11 Delay or Omission Not Waiver..........................................................35
Section 5.12 Control by Holders....................................................................35
Section 5.13 Waiver of Past Defaults...............................................................35
Section 5.14 Waiver of Stay or Extension Laws......................................................36
Section 5.15 Undertaking for Costs.................................................................36
ARTICLE 6. THE TRUSTEE....................................................................................37
Section 6.1 Certain Duties and Responsibilities...................................................37
Section 6.2 Notice of Defaults....................................................................38
Section 6.3 Certain Rights of Trustee.............................................................38
Section 6.4 Not Responsible for Recitals or Issuance of Debt Securities...........................39
Section 6.5 May Hold Debt Securities..............................................................39
Section 6.6 Money Held in Trust...................................................................39
Section 6.7 Compensation and Reimbursement........................................................40
Section 6.8 Disqualification; Conflicting Interests...............................................40
Section 6.9 Corporate Trustee Required, Different Trustees
for Different Series; Eligibility.....................................................40
Section 6.10 Resignation and Removal; Appointment of Successor.....................................41
Section 6.11 Acceptance of Appointment by Successor................................................42
Section 6.12 Merger, Conversion, Consolidation or Succession to Business...........................44
Section 6.13 Preferential Collection of Claims Against Company.....................................44
Section 6.14 Authenticating Agents.................................................................44
ARTICLE 7. HOLDERS' REPORTS BY TRUSTEE AND COMPANY........................................................46
Section 7.1 Preservation of Information; Company to Furnish
Trustee Names and Addresses of Holders................................................46
Section 7.2 Communications to Holders.............................................................46
Section 7.3 Reports by Trustee....................................................................46
Section 7.4 Reports by Company....................................................................46
4
- iii -
ARTICLE 8. CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER..................................................47
Section 8.1 Company May Consolidate, Etc., Only on Certain Terms..................................47
Section 8.2 Successor Corporation Substituted.....................................................47
ARTICLE 9. SUPPLEMENTAL INDENTURES........................................................................48
Section 9.1 Supplemental Indentures Without Consent of Holders....................................48
Section 9.2 Supplemental Indentures With Consent of Holders.......................................49
Section 9.3 Execution of Supplemental Indentures..................................................50
Section 9.4 Effect of Supplemental Indentures.....................................................51
Section 9.5 Conformity With Trust Indenture Act...................................................51
Section 9.6 Reference in Debt Securities to Supplemental Indentures...............................51
ARTICLE 10. COVENANTS......................................................................................51
Section 10.1 Payment of Principal (and Premium, if any) and Interest, if any.......................51
Section 10.2 Maintenance of Office or Agency.......................................................51
Section 10.3 Money for Debt Securities Payments to Be Held in Trust................................52
Section 10.4 Payment of Taxes and Other Claims.....................................................53
Section 10.5 Maintenance of Properties.............................................................54
Section 10.6 Corporate Existence...................................................................54
Section 10.7 Waiver of Certain Covenants...........................................................54
ARTICLE 11. REDEMPTION OF DEBT SECURITIES..................................................................54
Section 11.1 Applicability of this Article.........................................................55
Section 11.2 Election to Redeem; Notice to Trustee.................................................55
Section 11.3 Selection by Debt Security Registrar
of Debt Securities to Be Redeemed.....................................................55
Section 11.4 Notice of Redemption..................................................................56
Section 11.5 Deposit of Redemption Price...........................................................56
Section 11.6 Debt Securities Payable on Redemption Date. .........................................57
Section 11.7 Debt Securities Redeemed in Part......................................................57
ARTICLE 12. SINKING FUNDS..................................................................................57
Section 12.1 Applicability of this Article.........................................................57
Section 12.2 Satisfaction of Sinking Fund Payments With Debt Securities............................58
Section 12.3 Redemption of Debt Securities for Sinking Fund........................................58
ARTICLE 13. SUBORDINATION OF SECURITIES....................................................................58
Section 13.1 Debt Securities to Senior Indebtedness................................................58
Section 13.2 Default on Senior Indebtedness........................................................59
Section 13.3 Liquidation; Dissolution; Bankruptcy..................................................59
Section 13.4 Subrogation...........................................................................61
Section 13.5 Trustee to Effectuate Subordination...................................................62
5
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Section 13.6 Notice by the Company.................................................................62
Section 13.7 Rights of the Trustee; Holders of Senior Indebtedness.................................63
Section 13.8 Subordination May Not be Impaired.....................................................63
6
INDENTURE, dated as of ______________, 1999, among AMERICAN FINANCIAL
GROUP, INC., an Ohio corporation, One East Fourth Street, Cincinnati, Ohio 45202
(the "Company"), and FIRSTAR 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;
(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
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(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 the board or any director or directors and/or
officer or officers of the Company to whom that either of such boards or
committees shall have duly delegated its authority.
"Board Resolution" means (1) a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors or the Executive Committee of the Board of Directors and
to be in full force and effect on the date of such certification, or (2) a
certificate signed by the director or directors or officer or officers to whom
the Board of Directors shall have duly delegated its authority, and delivered to
the Trustee.
"Business Day", when used with respect to any particular Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking institutions in that Place of Payment are authorized or
obligated by law to close.
"Capitalized Lease Obligation" means any obligation to pay rent or
other amounts under a lease of (or other agreement conveying the right to use)
real or personal property that is required to be classified and accounted for as
a capital lease obligation under generally accepted accounting principles
consistently applied, and, for the purposes of this Indenture, the amount of
such obligation at any date shall be the capitalized amount thereof at such
date, determined in accordance with such principles.
"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
8
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connected with the Company or any Affiliate of the Company as an officer,
employee, promoter, underwriter, trustee, partner, director or person performing
similar functions, but such firm may be the regular auditors employed by the
Company.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by (1) the Chairman of the
Board, a Vice Chairman of the Board, Chief Executive Officer, the President, a
Co-President or a Vice President and by the Treasurer, an Assistant Treasurer,
an Assistant Controller, the Secretary or an Assistant Secretary of the Company,
or (2) by any two Persons designated in a Company Order previously delivered to
the Trustee for the Debt Securities of any series by any two of the foregoing
officers and delivered to the Trustee for the Debt Securities of such series.
"Corporate Trust Office" means the office of the Trustee for Debt
Securities of any series at which at any particular time its corporate trust
business shall be principally administered, which as of the date of this
Indenture is located at 425 Walnut Street, Cincinnati, Ohio 45202.
"Debt Securities" means securities evidencing unsecured indebtedness of
the Company authenticated and delivered under this Indenture.
"Debt Security Register" and "Debt Security Registrar" have the
respective meanings specified in Section 3.5.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Discounted Debt Security" means any Debt Security which provides for
an amount (excluding any amounts attributable to accrued but unpaid interest
thereon) less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.2.
"Dollars" and the sign "$" mean the currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934.
"Global Security" means a Debt Security in global form established
pursuant to Section 2.3.
9
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"Holder", when used with respect to any Debt Security, means the Person
in whose name a Debt Security is registered in the Debt Security Register.
"Indebtedness" means (a) any liability of any Person (1) for borrowed
money, or under any reimbursement obligation relating to a letter of credit
(other than letters of credit obtained in the ordinary course of business), or
(2) evidenced by a bond, note, debenture or similar instrument (including a
purchase money obligation) given in connection with the acquisition of any
businesses, properties or assets of any kind or with services incurred in
connection with capital expenditures (other than accounts payable or other
indebtedness to trade creditors arising in the ordinary course of business), or
(3) for the payment of money relating to a Capitalized Lease Obligation; (b) any
liability of others described in the preceding clause (a) that the Person has
guaranteed or that is otherwise its legal liability; and (c) any amendment,
supplement, modification, deferral, renewal, extension or refunding of any
liability of the types referred to in clauses (a) and (b) above.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of a particular series of Debt Securities
established as contemplated by Section 3.1.
"Interest", when used with respect to a Discounted Debt Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity.
"Interest Payment Date", when used with respect to any Debt Security,
means the Stated Maturity of an installment of interest on such Debt Security.
"Maturity", when used with respect to any Debt Security, means the date
on which the principal of that Debt Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, request for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, a Co-President or a Vice President (any
reference to a Vice President of the Company herein shall be deemed to include
any Vice President of the Company whether or not designated by a number or a
word or words added before or after the title "Vice President"), and by the
Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary of the Company, and delivered to the Trustee
for the Debt Securities of any series.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel to the Company, or other counsel satisfactory to the
Trustee for the Debt Securities of any series. An Opinion of Counsel may rely on
certificates as to matters of fact.
10
- 5 -
"Outstanding", when used with respect to Debt Securities, means, as of
the date of determination, all Debt Securities theretofore authenticated and
delivered under this Indenture, except:
(1) Debt Securities theretofore canceled by the Trustee for such Debt
Securities or delivered to such Trustee for cancellation;
(2) Debt Securities or portions thereof for whose payment or redemption
money in the necessary amount has been theretofore deposited with the Trustee
for such Debt Securities or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Debt Securities (including Debt
Securities with respect to which the Company has effected satisfaction and
discharged as provided in Article Four, except to the extent provided in such
Article); provided, however, that, if such Debt Securities or portions thereof
are to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture, or provision therefor satisfactory to such Trustee has been
made; and
(3) Debt Securities which have been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Debt Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Debt Securities in
respect of which there shall have been presented proof satisfactory to the
Trustee for such Debt Securities that any such Debt Securities are held by bona
fide purchasers in whose hands the Debt Securities are valid obligations of the
Company; provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
(a) Debt Securities owned by the Company or any Affiliate of the Company shall
be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee for such Debt Securities shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or waiver,
only Debt Securities which such Trustee knows to be so owned shall be so
disregarded, provided, that Debt Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of such Trustee the pledgee's right so to act with respect to such
Debt Securities and that the pledgee is not the Company or any Affiliate of the
Company and (b) the principal amount of a Discounted Debt Security that shall be
deemed to be Outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon
a declaration of acceleration pursuant to Section 5.2.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest, if any, on any Debt Securities
on behalf of the Company. The Company may act as its own Paying Agent.
"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.
11
- 6 -
"Place of Payment", when used with respect to the Debt Securities of
any particular series, means the place or places where the principal of (and
premium, if any) and interest, if any, on the Debt Securities of that series are
payable, as contemplated by Section 3.1.
"Redemption Date", when used with respect to any Debt Security to be
redeemed in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Debt Security to be
redeemed, means an amount equal to the principal amount thereof (and premium, if
any, thereon) together with accrued interest, if any, to the Redemption Date.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Debt Securities of any series, means the date, if any, specified for
that purpose as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee for any
series of Debt Securities, means the chairman or vice chairman of the board of
directors, the chairman or vice chairman of the executive committee of the board
of directors, the chief executive officer, the president, any vice president
(whether or not designated by a number or a word or words added before or after
the title "vice president"), the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, the controller or any assistant
controller or any other officer of such Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Senior Indebtedness" means, with respect to the Company, (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 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 for the Company (a
"financing entity") in connection with the issuance by such financing entity of
securities. Such Senior Indebtedness shall continue
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- 7 -
to be Senior Indebtedness and be entitled to the benefits of the subordination
provisions irrespective of any amendment, modification or waiver of any term of
such Senior Indebtedness.
A "series" of Debt Securities means all Debt Securities denoted as part
of the same series authorized by or pursuant to a particular Board Resolution.
"Special Record Date" for the payment of any Defaulted Interest on the
Debt Securities of any series means a date fixed by the Trustee for such series
pursuant to Section 3.7.
"Stated Maturity", when used with respect to any security or any
installment of principal thereof or interest thereon, means the date specified
in such security representing such installment of interest as the fixed date on
which the principal of such security or such installment of principal or
interest is due and payable.
"Subsidiary" means any corporation of which at least a majority of all
outstanding stock having ordinary voting power in the election of directors of
such corporation is at the time, directly or indirectly, owned by the Company or
by one or more Subsidiaries or by the Company and one or more Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument and, subject to the provisions of Article 6 hereof,
shall also include its successors and assigns as Trustee hereunder. If there
shall be at one time more than one Trustee hereunder, "Trustee" shall mean each
such Trustee and shall apply to each such Trustee only with respect to those
series of Debt Securities with respect to which it is serving as Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this Indenture was executed, except as provided in
Section 9.5 hereof and except that any rules and regulations subsequently
prescribed by the Commission pursuant to Section 314(a) of that Act shall apply.
"U.S. Depositary" means a clearing agency registered under the Exchange
Act, or any successor thereto, which shall in either case be designated by the
Company pursuant to Section 3.1, until a successor U.S. Depositary shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "U.S. Depositary" shall mean or include each Person who is then a
U.S. Depositary hereunder, and if at any time there is more than one such
Person, "U.S. Depositary" as used with respect to the Debt Securities of any
series shall mean the U.S. Depositary with respect to the Debt Securities of
that series.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the government of the United States or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the government of the United States, the payment of which 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.
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"United States" means the United States of America (including the
States and the District of Columbia), its territories, possessions and other
areas subject to its jurisdiction (including the Commonwealth of Puerto Rico).
"Yield to Maturity", when used with respect to any Discounted Debt
Security, means the yield to maturity, if any, set forth on the face thereof.
SECTION 1.2 Compliance Certificates and Opinions.
-------------------------------------
Upon any application or request by the Company to the Trustee for any
series of Debt Securities to take any action under any provision of this
Indenture, the Company shall furnish to such Trustee (i) an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with, (ii) an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, and (iii) if appropriate,
a Certificate of a Firm of Independent Public Accountants; provided, that in the
case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or request, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such condition
or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3 Form of Documents Delivered to Trustee.
---------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other
14
- 9 -
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows that the certificate or
opinion or representations with respect to matters upon which his certificate or
opinion is based are erroneous.
Any such certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company, unless such
counsel knows that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4 Acts of Holders.
----------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the
Trustee for the appropriate series of Debt Securities and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Debt Security, shall be sufficient for any
purpose of this Indenture and (subject to Section 6.1) conclusive in favor of
the Trustee for the appropriate series of Debt Securities and the Company and
any agent of such Trustee or the Company, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by an officer of a corporation or association or a member of a
partnership, or an official of a public or governmental body, on behalf of such
corporation, association, partnership or public or governmental body or by a
fiduciary, such certificate or affidavit shall also constitute sufficient proof
of his authority.
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(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee for the appropriate series
of Debt Securities deems sufficient.
(d) The principal amount and serial numbers of Debt Securities held by
any Person, and the date of holding the same, shall be proved by the Debt
Security Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Debt Security shall bind every
future Holder of the same Debt Security and the Holder of every Debt Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustee for such Debt Securities, the Debt Security Registrar, any Paying Agent
or the Company in reliance thereon, whether or not notation of such action is
made upon such Debt Security.
SECTION 1.5 Notices, Etc., to Trustee and Company.
--------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other documents provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee for a series of Debt Securities by any Holder or by the
Company shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with such Trustee at its Corporate Trust
Office, Attention: Corporate Trustee Administration Department, or
(2) the Company by such Trustee or by any Holder shall be sufficient
for every purpose hereunder if in writing and mailed, first class postage
prepaid, to the Company addressed to it at the address of its principal office
specified in the first paragraph of this instrument or at any other address
previously furnished in writing to such Trustee by the Company (except as
provided in paragraphs (3), (4) and (5) of Section 5.1.
SECTION 1.6 Notice to Holders; Waiver.
--------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
to Holders if in writing and mailed, first class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Debt Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice.
In any case where notice to Holders of Debt Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Any notice mailed in the manner prescribed by
this Indenture shall be deemed to have been given whether or not received by any
particular Holder. In case by reason of the suspension of regular mail service
or by reason of any other cause
16
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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.
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
17
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CONFLICTS OF LAW RULES OF SUCH STATE. THIS INDENTURE IS SUBJECT TO THE
PROVISIONS OF THE TRUST INDENTURE ACT OF 1939, AS AMENDED, THAT ARE REQUIRED TO
BE PART OF THIS INDENTURE AND SHALL, TO THE EXTENT APPLICABLE, BE GOVERNED BY
SUCH PROVISIONS.
SECTION 1.13 Non-Business Day.
-----------------
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of a Debt Security of any particular series shall not be a Business Day
at any Place of Payment with respect to Debt Securities of that series, then
(notwithstanding any other provision of this Indenture or of the Debt
Securities) payment of principal of (and premium, if any) and interest, if any,
with respect to such Debt Security need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption Date
or Stated Maturity, as the case may be.
SECTION 1.14 Immunity of Incorporators, Shareholders, Officers and
Directors.
-----------------------------------------------------
No recourse shall be had for the payment of the principal of (and
premium, if any), or the interest, if any, on any Debt Security of any series,
or for any claim based thereon, or upon any obligation, covenant or agreement of
this Indenture, against any incorporator, shareholder, officer or director, as
such, past, present or future, of the Company or 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.
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ARTICLE 2.
DEBT SECURITY FORM
SECTION 2.1 Form of Debt Securities.
------------------------
The Debt Securities of each series shall be in substantially the forms
set forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Debt Securities, as evidenced by their 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
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produced in any other manner, all as determined by the officers executing such
Debt Securities, as evidenced by their execution thereof.
SECTION 2.2 Form of Trustee's Certificate of Authentication.
------------------------------------------------
The Certificate of Authentication on all Debt Securities shall be in
substantially the following form:
"This is one of the Debt Securities, of the series
designated herein, described in the within-mentioned Indenture.
FIRSTAR BANK, N.A., 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.
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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 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;
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(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 Firstar Bank, N.A. is to act as Trustee for
the Debt Securities of that series, the name and location of the Corporate Trust
Office of such Trustee;
(12) if other than as set forth in Section 4.1, provisions for the
satisfaction and discharge of this Indenture with respect to the Debt Securities
of that series;
(13) any provision relating to the defeasance of the obligations of the
Company in connection with the Debt Securities of that series;
(14) any provisions regarding exchangeability or conversion of the Debt
Securities of that series;
(15) whether the Debt Securities of the series shall be issued in whole
or in part in the form of one or more Global Securities and, in such case, the
U.S. Depositary for such Global Security or Securities; whether such global form
shall be permanent or temporary; the manner in which and the circumstances under
which Global Securities representing Debt Securities of the series may be
exchanged for Debt Securities in definitive form, if other than, or in addition
to, the 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
22
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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 their
respective Chairman of the Board, a Vice Chairman of the Board, or its
President, a Co-President or one of its Vice Presidents. The Debt Securities
shall be so executed under their corporate seal reproduced thereon and attested
to by its Secretary or any one of its Assistant Secretaries. The signature of
any of these officers on the Debt Securities may be manual or facsimile.
Debt Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company 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 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.
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No Debt Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Debt
Security a certificate of authentication substantially in the form provided for
herein manually executed by the Trustee for such Debt Security or on its behalf
pursuant to Section 6.14, and such certificate upon any Debt Security shall be
conclusive evidence, and the only evidence, that such Debt Security has been
duly authenticated and delivered hereunder.
If the Company shall establish pursuant to Section 3.1 that the Debt
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee shall,
in accordance with Section 3.3 and the Company Order with respect to such
series, authenticate and deliver one or more Global Securities in temporary or
permanent form that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the Outstanding Debt Securities of
such series to be represented by one or more Global Securities, (ii) shall be
registered in the name of the U.S. Depositary for such Global Security or
Securities or the nominee of such depositary, and (iii) shall bear a legend
substantially to the following effect: "This Debt Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary, unless and until this Debt Security is
exchanged in whole or in part for Debt Securities in definitive form" and such
other legend as may be required by the U.S. Depositary.
SECTION 3.4 Temporary Debt Securities and Exchange of Debt Securities.
----------------------------------------------------------
Pending the preparation of definitive Debt Securities of any particular
series, the Company may execute, and upon Company Order the Trustee for the Debt
Securities of such series shall authenticate and deliver, temporary Debt
Securities which are printed, lithographed, typewritten, photocopied or
otherwise produced, in any denomination, with like terms and conditions as the
definitive Debt Securities of like series in lieu of which they are issued, and
with such appropriate 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
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terms and provisions. Until exchanged as hereinabove provided, the temporary
Debt Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Debt Securities of the same series
and with like terms and conditions authenticated and delivered hereunder.
SECTION 3.5 Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall keep or cause to be kept for the Debt Securities of
each series a register (the register maintained in such office being herein
sometimes referred to as the "Debt Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration, registration of transfer and exchange of Debt Securities.
Securities Transfer Company is hereby initially appointed "Debt Security
Registrar" for such purposes.
Upon surrender for registration of transfer of any Debt Security of any
particular series at the office or agency of the Company in a Place of Payment
for that series, the Company shall execute, and the Trustee for the Debt
Securities of each series shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Debt Securities of any
authorized denominations, and of a like Stated Maturity and of a like series and
aggregate principal amount and with like terms and conditions.
Except as set forth below, at the option of the Holder, Debt Securities
of any particular series may be exchanged for other Debt Securities of any
authorized denominations, and of a like Stated Maturity and of a like series and
aggregate principal amount and with like terms and conditions, upon surrender of
the Debt Securities to be exchanged at such office or agency. Whenever any Debt
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee for such Debt Securities shall authenticate and deliver, the Debt
Securities which the Holder making the exchange is entitled to receive.
All Debt Securities issued upon any registration of transfer or
exchange of Debt Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities surrendered upon such registration of transfer
or exchange.
Every Debt Security presented or surrendered for registration of
transfer or exchange shall (if so required by the Company or the Trustee for
such Debt Security) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Debt Security Registrar
for such series duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or
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exchange of Debt Securities, other than exchanges pursuant to Section 3.4, 9.6,
11.3 or 11.7 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Debt Securities of any series during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Debt Securities of that series selected for redemption under
Section 11.5 and ending at the close of business on the day of the mailing of
the relevant notice of redemption, or (ii) to register the transfer of or
exchange any Debt Security so selected for redemption as a whole or in part,
except the unredeemed portion of any Debt Security being redeemed in part.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for Debt Securities in definitive form, a
Global Security representing all or a portion of the Debt Securities of a series
may not be transferred except as a whole by the U.S. Depositary for such series
to a nominee of such U.S. Depositary or by a nominee of such U.S. Depositary to
such depositary or another nominee of such U.S. Depositary or by such U.S.
Depositary or any other such nominee to a successor U.S. Depositary for such
series or a nominee of such successor U.S. Depositary.
If at any time the U.S. Depositary for the Debt Securities of a series
notifies the Company that it is unwilling or unable to continue as U.S.
Depositary for the Debt Securities of such series or if at any time the U.S.
Depositary for Debt Securities of such series shall no longer be a clearing
agency registered and in good standing under the Exchange Act or other
applicable statute or regulation, the Company shall appoint a successor U.S.
Depositary for the Debt Securities of such series. If a successor U.S.
Depositary for the Debt Securities is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such condition,
the Company will execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Debt Securities of such series,
will authenticate and deliver, Debt Securities of such series in definitive form
in an aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such series in exchange for such Global
Security or Securities.
The Company may at any time and in its sole discretion determine that
the Debt Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities.
In such event, the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Debt Securities
of such series, will authenticate and deliver, Debt Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing such series in exchange
for such Global Security or Securities.
If the Debt Securities of any series shall have been issued in the form
of one or more Global Securities and if an Event of Default with respect to the
Debt Securities of such series shall have occurred and be continuing, the
Company will promptly execute, and the Trustee, upon receipt of
26
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a Company Order for the authentication and delivery of definitive Debt
Securities of such series, will authenticate and deliver Debt Securities of such
series in definitive form and in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 3.1 with respect to the
Debt Securities of a series, the U.S. Depositary for such series of Debt
Securities may surrender a Global Security for such series of Debt Securities in
exchange in whole or in part for Debt Securities of such series of like tenor
and terms and in definitive form on such terms as are acceptable to the Company
and such U.S. Depositary. Thereupon, the Company shall execute and the Trustee
shall authenticate and deliver, without charge:
(i) to each Person specified by the U.S. Depositary a new Debt
Security or Securities of the same series, of like tenor and terms and
of any authorized denomination as requested by such Person in an
aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the Global Security; and
(ii) to the U.S. Depositary a new Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal
amount of the Debt Securities delivered to Holders thereof.
Upon the exchange of a Global Security for Debt Securities in
definitive form, such Global Security shall be canceled by the Trustee.
Definitive Debt Securities issued in exchange for a Global Security pursuant to
this Section shall be registered in such names and in such authorized
denominations as the U.S. Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such definitive Debt Securities
to the Persons in whose names such Debt Securities are so registered.
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
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Security, pay such Debt Security (without surrender thereof except in the case
of a mutilated Debt Security) if the applicant for such payment shall furnish to
the Company, the Debt Security Registrar and the Trustee for such Debt Security
such security or indemnity as may be required by them to save each of them
harmless, and in case of destruction, loss or theft, evidence satisfactory to
the Company and such Trustee and any agent of either of them of the destruction,
loss or theft of such Debt Security and the ownership thereof.
Upon the issuance of any new Debt Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including all fees and expenses of the Trustee and the Debt Security
Registrar for such Debt Security) connected therewith.
Every new Debt Security of any series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Debt Security or in exchange for any
mutilated Debt Security shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Debt
Security shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Debt Securities of the same series, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) the assertion of any Holder of all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Debt Securities.
SECTION 3.7 Payment of Interest; Interest Rights Preserved.
-----------------------------------------------
Interest on any Debt Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall, if so provided in such
Debt Security, be paid to the Person in whose name that Debt Security (or one or
more Predecessor Debt Securities) is registered at the close of business on the
Regular Record Date for such interest payment.
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)
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are registered at the close of business on a Special Record Date for the payment
of such Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee for the Debt Securities of such series in
writing of the amount of Defaulted Interest proposed to be paid on each Debt
Security of that series and the date of the proposed payment, and at the same
time the Company shall deposit with such Trustee an amount of money (except as
otherwise specified pursuant to Section 3.1 for the Debt Securities of such
series) equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to such Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon such Trustee shall fix
a Special Record Date for the payment of such Defaulted Interest which shall not
be more than 15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by such Trustee of the
notice of the proposed payment. Such Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid, to each
Holder of Debt Securities of that series at such Holder's address as it appears
in the Debt Security Register not less than 10 days prior to such Special Record
Date. Such Trustee may, in its discretion, in the name and at the expense of the
Company, cause a similar notice to be published at least once in a newspaper
published in the English language customarily on each Business Day and of
general circulation in New York, New York, but such publication shall not be a
condition precedent to the establishment of such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest shall be paid
to the Persons in whose names the Debt Securities of that series (or their
respective Predecessor Debt Securities) are registered on such Special Record
Date and shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on Debt
Securities of any particular series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Debt Securities
may be listed, and upon such notice as may be required by such exchange, if,
after notice is given by the Company to the Trustee for the Debt Securities of
such series of the proposed manner of payment pursuant to this clause, such
manner of payment shall be deemed practicable by such Trustee.
Subject to the foregoing provisions of this Section and Section 3.5,
each Debt Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Debt Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Debt Security.
SECTION 3.8 Persons Deemed Owners.
----------------------
Prior to due presentment of a Debt Security for registration of
transfer, the Company, the Trustee for such Debt Security and any agent of the
Company or such Trustee may treat the Person in whose name any such Debt
Security is registered as the owner of such Debt Security for the
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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 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
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at the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of such indebtedness, when:
(1) either
(A) all Debt Securities of such series theretofore
authenticated and delivered (other than (i) any Debt Securities of such series
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.6 and (ii) Debt Securities of such series for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in the last paragraph of Section 10.3) have been
delivered to such Trustee for cancellation; or
(B) with respect to all Outstanding Debt Securities of such
series described in (A) above not theretofore so delivered to the Trustee for
the Debt Securities of such series for cancellation:
(i) the Company has deposited or caused to
be deposited with such Trustee as trust funds in
trust an amount (except as otherwise specified
pursuant to Section 3.1 for the Debt Securities of
such series), sufficient to pay and discharge the
entire indebtedness on all such Outstanding Debt
Securities of such series for principal (and premium,
if any) and interest, if any, to the Stated Maturity
or any Redemption Date as contemplated by Section
4.2, as the case may be; or
(ii) the Company has deposited or caused to
be deposited with such Trustee as obligations in
trust such amount of U.S. Government Obligations as
will, as evidenced by a Certificate of a Firm of
Independent 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;
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(3) the Company has delivered to such Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of the
entire indebtedness on all Debt Securities of such series have been complied
with; and
(4) if the Debt Securities of such series are not to become
due and payable at their Stated Maturity within one year of the date of such
deposit or are not to be called for redemption within one year of the date of
such deposit under arrangements satisfactory to such Trustee as of the date of
such deposit, then the Company shall have given, not later than the date of such
deposit, notice of such deposit to the Holders of such Debt Securities.
(b) Upon the satisfaction of the conditions set forth in this
Section 4.1 with respect to all the Debt Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company, and the Holders of the Debt Securities of such
series shall look for payment only to the funds or obligations deposited with
the Trustee pursuant to Section 4.1(a)(1)(B); provided, however, that in no
event shall the Company be discharged from (i) any payment obligations in
respect of Debt Securities of such series which are deemed not to be Outstanding
under clause (3) of the definition thereof if such obligations continue to be
valid obligations of the Company under applicable law, (ii) from any obligations
under Sections 4.2(b), 6.7 and 6.10 and (iii) from any obligations under
Sections 3.5 and 3.63.6 (except that Debt Securities of such series issued upon
registration of transfer or exchange or in lieu of mutilated, destroyed, lost or
stolen Debt Securities shall not be obligations of the Company) and Sections 7.1
and 10.2; and provided, further, that in the event a petition for relief under
the Bankruptcy Act of 1978 or Title 11 of the United States Code or a successor
statute is filed and not discharged with respect to the Company within 91 days
after the deposit, the entire indebtedness on all Debt Securities of such series
shall not be discharged, and in such event the Trustee shall return such
deposited funds or obligations as it is then holding to the Company upon Company
Request.
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
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series of Debt Securities for the giving of notice of redemption by such Trustee
in the name, and at the expense, of the Company.
(b) The Company shall pay and shall indemnify the Trustee for any
series of Debt Securities against any tax, fee or other charge imposed on or
assessed against U.S. Government Obligations deposited pursuant to Section 4.1
or the interest and principal received in respect of such U.S. Government
Obligations other than any such tax, fee or other charge which by law is payable
by or on behalf of Holders. The obligation of the Company under this Section
4.2(b) shall be deemed to be an obligation of the Company under Section 6.7(2).
(c) Anything in this Article Four to the contrary notwithstanding, the
Trustee for any series of Debt Securities shall deliver or pay to the Company
from time to time upon Company Request any money or U.S. Government Obligations
held by it as provided in Section 4.1 which, as expressed in a Certificate of a
Firm of Independent Public Accountants delivered to such Trustee, are in excess
of the amount thereof which would then have been required to be deposited for
the purpose for which such money or U.S. Government Obligations were deposited
or received provided such delivery can be made without liquidating any U.S.
Government Obligations.
SECTION 4.3 Satisfaction and Discharge of Indenture.
----------------------------------------
Upon compliance by the Company with the provisions of Section 4.1 as to
the satisfaction and discharge of each series of Debt Securities issued
hereunder, and if the Company has paid or caused to be paid all other sums
payable under this Indenture, this Indenture shall cease to be of any further
effect (except as otherwise provided herein). Upon Company Request and receipt
of an Opinion of Counsel and an Officers' Certificate complying with the
provisions of Section 1.2, the Trustees for all series of Debt Securities (at
the expense of the Company) shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture.
Notwithstanding the satisfaction and discharge of this Indenture, any
obligations of the Company under Sections 3.4, 3.5, 3.6, 4.2(b), 6.7, 6.10, 7.1
and 10.2 and the obligations of the Trustee for any series of Debt Securities
under Section 4.2 shall survive.
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
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of its rights or obligations hereunder, the Company has made any payment of
principal of (or premium, if any) or interest, if any, on such Debt Securities,
the Company shall be subrogated to the rights of the Holders of such Debt
Securities to receive payment from such Amounts or U.S. Government Obligations,
as the case may be, held by the Trustee for such series.
ARTICLE 5.
REMEDIES
SECTION 5.1 Events of Default.
------------------
"Event of Default" wherever used herein with respect to any particular
series of Debt Securities, unless otherwise specified in the Debt Security or
the Board Resolution with respect to that series of Debt Securities, means any
one of the following events (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any installment of interest upon any Debt
Security of that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on)
any Debt Security of that series at its Maturity; or
(3) default in the performance of, or breach of, any covenant or
warranty of the Company in respect of any Debt Security of that series contained
in this Indenture or in such Debt Securities (other than a covenant or warranty
a default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which expressly has been included in this Indenture
solely for the benefit of Debt Securities of a series other than that series) or
in the applicable Board Resolution under which such series is issued as
contemplated by Section 3.1 and continuance of such default or breach for a
period of 60 days after there has been given, by registered or certified mail,
to the Company by the Trustee for the Debt Securities of such series or to the
Company and such Trustee by the Holders of at least 25% in principal amount of
the Outstanding Debt Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(4) if an event of default with respect to any other series of Debt
Securities or as defined in any mortgage, indenture, security agreement or other
instrument under which there may be issued, or by which there may be secured or
evidenced, any Indebtedness of the Company for money borrowed in excess of $10
million principal amount, whether such Indebtedness now exists or shall
hereafter be created, shall happen and, if such Indebtedness is not already
matured in accordance with its terms, shall result in such Indebtedness becoming
or being declared due and payable prior to the date on which it would otherwise
become due and payable, and such acceleration shall not
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have been rescinded or annulled or such Indebtedness shall not have been
discharged, in either case, within a period of ten days after there has been
given, by registered or certified mail in the manner set forth in Section 1.5,
to the Company by the Trustee for the Debt Securities of that particular series
referred to in the first clause of this Section 5.1 or to the Company and such
Trustee by the Holders of at least 25% in principal amount of the Outstanding
Debt Securities of that particular series referred to in the first clause of
this Section 5.1 a written notice specifying such event of default and requiring
the Company to cause such acceleration to be rescinded or annulled or to cause
such Indebtedness to be discharged and stating that such notice is a "Notice of
Default" hereunder; provided, that if prior to the entry of judgment in favor of
the Trustee, such default under such indenture or instrument shall be remedied
or cured by the Company or waived by the holders of such Indebtedness, then the
Event of Default hereunder shall be deemed likewise to have been remedied, cured
or waived; and provided, further, that, if such default results from an action
of the United States government or a foreign government which prevents the
Company from performing its obligations under such agreement, indenture or
instrument, as evidenced by an Officer's Certificate delivered to the Trustee,
the occurrence of such default will not be an Event of Default hereunder; and
provided, further, however, that, subject to the provisions of Sections 6.1 and
6.2, such Trustee shall not be deemed to have knowledge of such default unless
either (A) a Responsible Officer of such Trustee assigned to its Corporate Trust
Office shall have actual knowledge of such default or (B) the Trustee shall have
received written notice thereof from the Company, from the Holders of 10% or
more in principal amount of the Outstanding Debt Securities of such other
series, from the holder of any such Indebtedness or from the trustee under any
such mortgage, indenture, security agreement or other instrument; or
(5) the entry against the Company of one or more judgments, decrees or
orders by a court having jurisdiction in the premises from which no appeal may
be or is taken for the payment of money, either individually or in the
aggregate, in excess of $10 million and the continuance of such judgment, decree
or order unsatisfied and in effect for any period of 60 consecutive days without
a stay of execution and there has been given, by registered or certified mail in
the manner set forth in Section 1.5, to the Company by the Trustee for the Debt
Securities of such series or to the Company and such Trustee by the Holders of
at least 25% in principal amount of the Outstanding Debt Securities of such
series a written notice specifying such entry and continuance of such judgment,
decree or order and stating that such notice is a "Notice of Default" hereunder;
provided, however, that subject to the provisions of Sections 6.1 and 6.2, such
Trustee shall not be deemed to 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,
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dissolution, arrangement, composition, readjustment of debt or other similar act
or law of any jurisdiction, domestic or foreign, now or hereafter existing; or
the Company shall apply for a receiver, custodian or trustee (other than any
trustee appointed as a mortgagee or secured party in connection with the
issuance of indebtedness for borrowed money of the Company) of it or for all or
a substantial part of its property; or the Company shall make a general
assignment for the benefit of creditors; or the Company shall take any corporate
action in furtherance of any of the foregoing; or
(7) any case or proceeding against the Company shall be commenced
seeking to have an order for relief entered against it or to adjudicate it as
bankrupt or insolvent or seeking reorganization, liquidation, dissolution,
winding-up, arrangement, composition or readjustment of its debts or any other
relief under any bankruptcy, insolvency, reorganization, liquidation,
dissolution, arrangement, composition, readjustment of debt or other similar act
or law of any jurisdiction, domestic or foreign, now or hereafter existing; or a
receiver, custodian or trustee (other than any trustee appointed as a mortgagee
or secured party in connection with the issuance of indebtedness for borrowed
money of the Company) of the Company or for all or a substantial part of its
property shall be appointed in any such case or proceeding; and such case or
proceeding (A) results in the entry of an order for relief or a similar order
against it or (B) shall continue unstayed and in effect for a period of 60
consecutive days.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
---------------------------------------------------
If an Event of Default with respect to any particular series of Debt
Securities occurs and is continuing, then and in every such case either the
Trustee for the Debt Securities of such series or the Holders of not less than
25% in principal amount of the Outstanding Debt Securities of that series may
declare the entire principal amount (or, in the case of Discounted Debt
Securities, such lesser amount as may be provided for in the terms of that
series) of all the Debt Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to such Trustee if given
by Holders), and upon any such declaration of acceleration such principal or
such lesser amount, as the case may be, together with accrued interest and all
other amounts owing hereunder, shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived.
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;
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(B) the principal of (and premium, if any, on) any Debt Securities of
that series which have become due otherwise than by such declaration of
acceleration and interest thereon from the date such principal became due at a
rate per annum equal to the rate borne by the Debt Securities of such series
(or, in the case of Discounted Debt Securities, the Debt Securities' Yield to
Maturity), to the extent that the payment of such interest shall be legally
enforceable;
(C) to the extent that payment of such interest is lawful, interest
upon overdue interest at a rate per annum equal to the rate borne by the Debt
Securities of such series (or, in the case of Discounted Debt Securities, the
Debt Securities' Yield to Maturity); and
(D) all sums paid or advanced by such Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of such Trustee,
its agents and counsel and all other amounts due to such Trustee under Section
6.7; and
(2) all Events of Default with respect to the Debt Securities of such
series, other than the nonpayment of the principal of Debt Securities of that
series which has become due solely by such acceleration, have been cured or
waived as provided in Section 5.13. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement
by Trustee.
------------------------------------------------------
The Company covenants that if:
(1) default is made in the payment of any interest upon any Debt
Security of any series when such interest becomes due and payable and such
default continues for a period of 30 days; or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Debt Security of any series at its Maturity, the Company will, upon
demand of the Trustee for the Debt Securities of such series, pay to it, for the
benefit of the Holders of such Debt Securities, the whole amount then due and
payable on such Debt Securities for principal (and premium, if any) and
interest, if any, with interest upon the overdue principal (and premium, if any)
and, to the extent that payment of such interest shall be legally enforceable,
upon any overdue installments of interest at a rate per annum equal to the rate
borne by such Debt Securities (or, in the case of Discounted Debt Securities,
the Debt Securities' Yield to Maturity); and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
such Trustee, its agents and counsel and all other amounts due to such Trustee
under Section 6.7.
If the Company fails to pay such amounts forthwith upon such demand,
such Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceedings to judgment or final decree, and may enforce the same
against the Company and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the Company, wherever
situated.
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If an Event of Default with respect to Debt Securities of any
particular series occurs and is continuing, the Trustee for the Debt Securities
of such series may in its discretion proceed to protect and enforce its rights
and the rights of the Holders of Debt Securities of that series by such
appropriate judicial proceedings as such Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relating to the Company or the property of the Company or
its creditors, the Trustee for the Debt Securities of any series (irrespective
of whether the principal (or lesser amount in the case of Discounted Debt
Securities) of any Debt Security of such series shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether
such Trustee shall have made any demand on the Company for the payment of
overdue principal or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise
(i) to file and prove a claim for the whole amount of
principal (or lesser amount in the case of Discounted Debt
Securities) (and premium, if any) and interest, if any, owing
and unpaid in respect of the Debt Securities of such series
and to file such other papers or documents as may be necessary
or advisable in order to have the claims of such Trustee
(including any claim for the reasonable compensation,
expenses, disbursements and advances of such Trustee, its
agents and counsel and all other amounts due to such Trustee
under Section 6.7) and of the Holders of the Debt Securities
of such series allowed in such judicial proceeding;
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same; and
(iii) unless prohibited by law or applicable
regulations, to vote on behalf of the Holders of the Debt Securities of
such series in any election of a trustee in bankruptcy or other person
performing similar functions; and any receiver, assignee, trustee,
liquidator, sequestrator (or other similar official) in any such
judicial proceeding is hereby authorized 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
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of such series or the rights of any Holder thereof, or to authorize the Trustee
for the Debt Securities of any series to vote in respect of the claim of any
Holder in any such proceeding, except as aforesaid, for the election of a
trustee in bankruptcy or other person performing similar functions.
SECTION 5.5 Trustee May Enforce Claims Without Possession of Debt
Securities.
-------------------------------------------------------
All rights of action and claims under this Indenture or the Debt
Securities of any series may be prosecuted and enforced by the Trustee for the
Debt Securities of any series without the possession of any of the Debt
Securities of such series or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by such Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of such Trustee, its agents and counsel and all other
amounts due to such Trustee under Section 6.7, be for the ratable benefit of the
Holders of the Debt Securities of such series in respect of which such judgment
has been recovered.
SECTION 5.6 Application of Money Collected.
-------------------------------
Any money collected by the Trustee for the Debt Securities of any
series pursuant to this Article with respect to the Debt Securities of such
series shall be applied in the following order, at the date or dates fixed by
such Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, if any, upon presentation of the
Debt Securities of such series and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due such Trustee under
Section 6.7;
Second: To the payment of the amounts then due and unpaid upon
the Debt Securities of such series for principal of (and premium, if
any) and interest, if any, on such Debt Securities in respect of which
or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts
due and payable on such Debt Securities for principal (and premium, if
any) and interest, if any, respectively; and
Third: The balance, if any, to the Person or Persons entitled
thereto.
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:
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(1) an Event of Default with respect to that series shall have
occurred and be continuing and such Holder shall have previously given
written notice to the Trustee for the Debt Securities of such series of
such default and the continuance thereof;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of that series shall have made written
request to the Trustee for the Debt Securities of such series to
institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to such Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) such Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to such Trustee during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Debt Securities of
that series; it being understood and intended that no Holder or Holders
of Debt Securities of that series shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other
Holders of Debt Securities of that series, or to enforce any right
under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the Holders of Debt Securities of that
series.
SECTION 5.8 Unconditional Right of Holders to Receive Principal
(and Premium, if any) and Interest, if any.
------------------------------------------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Debt Security shall have the right which is absolute and unconditional to
receive payment of the principal of (and premium, if any) and (subject to
Section 3.7) interest, if any, on such Debt Security on the respective Stated
Maturities expressed in such Debt Security (or, in the case of redemption, on
the Redemption Date) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder.
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
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respectively to their former positions hereunder, and thereafter all rights and
remedies of such Trustee and such Holders shall continue as though no such
proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative.
-------------------------------
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Debt Securities in the last paragraph of
Section 3.6, no right or remedy herein conferred upon or reserved to the Trustee
for the Debt Securities of any series or to the Holders of Debt Securities is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver.
-----------------------------
No delay or omission of the Trustee for the Debt Securities of any
series or of any Holder of any Debt Security of such series to exercise any
right or remedy accruing upon any Event of Default with respect to the Debt
Securities of such series shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to such Trustee for the Debt Securities
of any series or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by such Trustee or by the Holders, as the case may
be.
SECTION 5.12 Control by Holders.
-------------------
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any particular series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee for the Debt Securities of such series with respect to the Debt
Securities of that series or exercising any trust or power conferred on such
Trustee with respect to such Debt Securities, provided that:
(1) such direction shall not be in conflict with any rule of law or
with this Indenture; and
(2) such Trustee may take any other action deemed proper by such
Trustee which is not inconsistent with such direction.
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:
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(1) a default in the payment of the principal of (or premium, if any)
or interest, if any, on any Debt Security of that series; or
(2) a default with respect to a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Debt Security of that series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture, and any such waiver shall be binding upon all
subsequent Holders of such Indebtedness; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 5.14 Waiver of Stay or Extension Laws.
---------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law, wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee for any series of Debt Securities, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
SECTION 5.15 Undertaking for Costs.
----------------------
All parties to this Indenture agree, and each Holder of any Debt
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Debt Securities of such series, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium, if any) or interest on any Debt Security on or after the Stated
Maturity or Maturities expressed in such Debt Security (or, in the case of
redemption, on or after the Redemption Date).
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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.
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SECTION 6.2 Notice of Defaults.
-------------------
Within 90 days after the occurrence of any default hereunder with
respect to Debt Securities of any particular series, the Trustee for the Debt
Securities of such series shall give to Holders of Debt Securities of that
series, in the manner set forth in Section 1.6, notice of such default known to
such Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest, if any, on any Debt Security of that
series, or in the deposit of any sinking fund payment with respect to Debt
Securities of that series, such Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of such Trustee in good
faith determines that the withholding of such notice is in the interest of the
Holders of Debt Securities of that series; and provided, further, that in the
case of any default of the character specified in Section 5.1(3) with respect to
Debt Securities of that series no such notice to Holders shall be given until at
least 60 days after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Debt Securities of that
series.
SECTION 6.3 Certain Rights of Trustee.
--------------------------
Except as otherwise provided in Section 6.1:
(a) the Trustee for any series of Debt Securities may rely and
shall be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture such
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, such Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(d) such Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) such Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Debt Securities of any series pursuant to
this Indenture for which it is acting as Trustee, unless such
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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.
SECTION 6.5 May Hold Debt Securities.
-------------------------
The Trustee for any series of Debt Securities, any Authenticating
Agent, Paying Agent, Debt Security Registrar or any other agent of the Company
or such Trustee, in its individual or any other capacity, may become the owner
or pledgee of Debt Securities and, subject to Sections 6.8 and 6.13, may
otherwise deal with the Company with the same rights it would have if it were
not such Trustee, Authenticating Agent, Paying Agent, Debt Security Registrar or
other agent.
SECTION 6.6 Money Held in Trust.
--------------------
Money held by the Trustee for any series of Debt Securities in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee for any series of Debt Securities shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
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SECTION 6.7 Compensation and Reimbursement.
-------------------------------
The Company agrees:
(1) to pay to the Trustee for any series of Debt Securities
from time to time reasonable compensation for all services rendered by
it hereunder (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee for any series of Debt Securities upon its
request for all reasonable expenses, disbursements and advances
incurred or made by such Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify such Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee for any series of Debt Securities shall have a lien
prior to the Debt Securities upon all property and funds held or collected by
such Trustee as such, except funds held in trust for the payment of principal of
(and premium, if any) or interest, if any, on any particular series Debt
Securities. Such lien shall survive satisfaction and discharge of this
Indenture.
SECTION 6.8 Disqualification; Conflicting Interests.
----------------------------------------
The Trustee for any series of Debt Securities shall be subject to and
comply with the provisions of Section 310(b) of the Trust Indenture Act during
the period of time required thereby. Nothing herein shall prevent the Trustee
for any series of Debt Securities from filing with the Commission the
application referred to in the penultimate paragraph of Section 310(b) of the
Trust Indenture Act. In determining whether the Trustee for any series of Debt
Securities has a conflicting interest as defined in Section 310(b) of the Trust
Indenture Act, the Debt Securities of any other series of Debt Securities shall
be excluded.
SECTION 6.9 Corporate Trustee Required, Different Trustees for
Different Series; Eligibility.
-------------------------------------------------------
There shall at all times be a Trustee hereunder for the Debt Securities
of each series which satisfies the requirements of Trust Indenture Act Sections
310(a)(1), 310(a)(2) and 310(a)(5), has
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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 Firstar Bank, N.A., the
Company and such Trustee shall, prior to the issuance of such Debt Securities,
execute and deliver an indenture supplemental hereto, which shall provide for
the appointment of such Trustee as Trustee for the Debt Securities of such
series and shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee. If at any time the Trustee for the Debt Securities of
any series shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 6.10 Resignation and Removal; Appointment of Successor.
--------------------------------------------------
(a) No resignation or removal of the Trustee for the Debt
Securities of any series and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section
6.11.
(b) The Trustee for the Debt Securities of any series may
resign at any time with respect to the Debt Securities of such series by giving
written notice thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 6.11 shall not have been delivered to the
Trustee for the Debt Securities of such series within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Debt Securities of such series.
(c) The Trustee for the Debt Securities of any series may be
removed at any time with respect to the Debt Securities of such series by Act of
the Holders of a majority in principal amount of the Outstanding Debt Securities
of such series, delivered to such Trustee and to the Company.
(d) If at any time:
(1) the Trustee for the Debt Securities of any series shall
fail to comply with Section 310(b) of the Trust Indenture Act pursuant
to Section 6.8 after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Debt Security of such
series for at least six months unless the Trustee's duty to resign is
stayed in accordance with Section 310(b) of the Trust Indenture Act, or
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(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 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
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Trustee shall become effective and such successor Trustee without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder, subject to the lien provided for in Section
6.7.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Debt Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Debt
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Debt Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debt Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and each Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Debt Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Debt Securities of that or those series to
which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in Subsections (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee for the Debt Securities of any
series shall be qualified and eligible under this Article.
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(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.
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
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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 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.
FIRSTAR BANK, N.A.
By:
--------------------------------
As Authenticating Agent
By:
--------------------------------
Authorized Signer
51
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ARTICLE 7.
HOLDERS' REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Preservation of Information; Company to Furnish Trustee
Names and Addresses of Holders.
-------------------------------------------------------
The Trustee for any particular series of Debt Securities shall preserve
in as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of Holders of the Debt Securities of that
series. Neither the Company nor such Trustee shall be under any responsibility
with regard to the accuracy of such list. With respect to each series of Debt
Securities, the Company, in furnishing information regarding such Holders to
such Trustee, and such Trustee, will satisfy the requirements imposed upon each
of them by Section 312(a) of the Trust Indenture Act.
SECTION 7.2 Communications to Holders.
--------------------------
Holders of any particular series of Debt Securities may communicate
with other Holders of Debt Securities of that series with respect to their
rights under this Indenture or under such series of Debt Securities pursuant to
Section 312(b) of the Trust Indenture Act. The Company and the Trustee for any
particular series of Debt Securities and any and all other Persons benefitted 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.
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ARTICLE 8.
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms.
-----------------------------------------------------
The Company shall not consolidate with or merge into any other
corporation or sell, convey, assign, transfer, lease or otherwise dispose of all
or substantially all of its properties and assets as an entirety to any Person
unless:
(1) either (i) the Company shall be the continuing corporation
or (ii) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person which
acquires by sale, assignment, conveyance, transfer, lease or
disposition all or substantially all of the properties and assets of
the Company as an entirety (x) shall be a corporation, partnership or
trust organized and validly existing under the laws of the United
States or any State thereof or the District of Columbia and (y) shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of (and premium, if any) and
interest, if any, on all the Debt Securities and the performance and
observance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction (and
treating any Indebtedness not previously an obligation of the Company
or a Subsidiary which becomes the obligation of the Company or any of
its Subsidiaries in connection with or as a result of such transaction
as having been incurred at the time of such transaction), no Event of
Default, and no event which, after notice or lapse of time, or both,
would become an Event of Default, shall have occurred and be
continuing;
(3) such other conditions, if any, as may be set forth in the
Board Resolution establishing the Debt Securities of that particular
series are met or complied with; and
(4) the Company has delivered to the Trustee for each series
of Debt Securities an Officers' Certificate and an Opinion of Counsel
each stating that such consolidation, merger, conveyance or transfer
and such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 8.2 Successor Corporation Substituted.
----------------------------------
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety in accordance
with Section 8.1, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance or transfer is made
shall succeed to, and be substituted for, and may exercise every right and power
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of, the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein and thereafter the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Debt Securities and, in the event of any such consolidation,
merger, conveyance or transfer, the Company as the predecessor corporation may
thereupon or at any time thereafter be dissolved, wound up, or liquidated.
ARTICLE 9.
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Holders.
---------------------------------------------------
Without the consent of any Holders of Debt Securities, the Company,
when authorized by a Board Resolution, and the Trustee for the Debt Securities
of any or all series, at any time and from time to time, may enter into one or
more indentures supplemental hereto, in form satisfactory to such Trustee, for
any of the following purposes:
(1) to evidence the succession of another corporation to the
Company pursuant to Article 8, and the assumption by any such successor
of the covenants of the Company herein and in the Debt Securities
contained; or
(2) to add to the covenants of the Company, for the benefit of
the Holders of all or any particular series of Debt Securities (and, if
such covenants are to be for the benefit of fewer than all series of
Debt Securities, stating that such covenants are being included solely
for the benefit of such series), or to surrender any right or power
herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to
any or all series of Debt Securities (and, if any such Event of Default
applies to fewer than all series of Debt Securities, stating each
series to which such Event of Default applies); or
(4) to add to, change or eliminate any of the provisions of
this Indenture, provided, however, that any such addition, change or
elimination shall become effective only when there is no Debt Security
Outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such
provision and as to which such supplemental indenture would apply; or
(5) to evidence and provide for the acceptance of appointment
hereunder of a Trustee other than Firstar Bank, N.A. as Trustee for a
series of Debt Securities and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.9; or
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(6) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt Securities of
one or more series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11(b); or
(7) to establish the conditions, limitations and restrictions
on the authorized amount, form, terms or purposes of issue,
authentication and delivery of Debt Securities, as herein set forth,
and other conditions, limitations and restrictions thereafter to be
observed; or
(8) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
satisfaction and discharge of any series of Debt Securities pursuant to
Section 4.1; provided, however, that any such action shall not
adversely affect the interests of the Holders of Debt Securities of
such series or any other series of Debt Securities in any material
respect; or
(9) to add to or change or eliminate any provisions of this
Indenture as shall be necessary or desirable in accordance with any
amendments to the Trust Indenture Act; or
(10) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, to convey, transfer, assign, mortgage or pledge any property to
or with the Trustee for the Debt Securities of any series or to
surrender any right or power herein conferred upon the Company, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided such action shall not adversely affect
the rights of the Holders of Debt Securities of any particular series
in any material respect.
SECTION 9.2 Supplemental Indentures With Consent of Holders.
------------------------------------------------
The Company, when authorized by a Board Resolution, and the Trustee for
the Debt Securities of any or all series may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of such Debt Securities
under this Indenture, but only with the consent of the Holders of more than 50%
in aggregate principal amount of the Outstanding Debt Securities of each series
of Debt Securities then Outstanding affected thereby, in each case by Act of
said Holders of Debt Securities of each such series delivered to the Company and
the Trustee for Debt Securities of each such series; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Debt Security affected thereby:
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Debt Security, or reduce the principal
amount thereof or the rate of interest thereon,
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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
10.7, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Debt Security affected thereby; provided, however, that this
clause shall not be deemed to require the consent of any Holder of a Debt
Security with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 10.7, or the deletion of this
proviso, in accordance with the requirements of Sections 6.9, 6.11(b), 9.1(6)
and 9.1(7).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Debt Securities, or which
modifies the rights of the Holders of Debt Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Debt Securities of any other
series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.3 Execution of Supplemental Indentures.
-------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee for any series of Debt
Securities shall be entitled to receive, and (subject to Section 6.1) shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee for any series of Debt Securities may, but shall not be
obligated to, enter into any such supplemental indenture which affects such
Trustee's own rights, liabilities, duties or immunities under this Indenture or
otherwise.
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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 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
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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 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;
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(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;
(3) at any time during the continuation of any such default, upon the
written request of such Trustee, forthwith pay to such Trustee all sums so held
in trust by such Paying Agent; and
(4) acknowledge, accept and agree to comply in all respects with the
provisions of this Indenture relating to the duties, rights and disabilities of
such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee for the Debt
Securities of any series all sums held in trust by the Company or such Paying
Agent, such sums to be held by such Trustee upon the same trusts as those upon
which such sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to such Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee for the Debt Securities of any
series or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of (and premium, if any) and interest, if any, on any
Debt Security of any particular series and remaining unclaimed for two years
after such principal (and premium, if any) and interest, if any, has become due
and payable shall, unless otherwise required by mandatory provisions of
applicable escheat, abandoned or unclaimed property law, be paid to the Company
on Company Request, or (if then held by the Company) shall be discharged from
such trusts; and the Holder of such Debt Security shall, thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of such Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that such Trustee or such Paying Agent, before being
required to make any such repayment may mail written notice to each such Holder
of such Debt Security in the manner set forth in Section 1.5, or may, in its
discretion, in the name and at the expense of the Company, cause to be published
at least once in a newspaper published in the English language customarily on
each Business Day and of general circulation in the Borough of Manhattan, the
City of New York, notice, that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such mailing or publication, any unclaimed balance of such money then remaining
will, unless otherwise required by mandatory provisions of applicable escheat,
abandoned or unclaimed property law, be repaid to the Company.
SECTION 10.4 Payment of Taxes and Other Claims.
----------------------------------
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon it or upon its income, profits or
property, and (2) all lawful claims for labor, materials and supplies which, if
unpaid, might by law become a lien upon its property; provided, however, that
the
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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
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.
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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.
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.
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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,
(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
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(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.
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.
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ARTICLE 12.
SINKING FUNDS
SECTION 12.1 Applicability of this Article.
------------------------------
Redemption of Debt Securities through operation of a sinking fund as
permitted or required by any form of Debt Security issued pursuant to this
Indenture shall be made in accordance with such form of Debt Security and this
Article; provided, however, that if any provision of any such form of Debt
Security shall conflict with any provision of this Article, the provision of
such form of Debt Security shall govern.
The minimum amount of any sinking fund payment provided for by the
terms of Debt Securities of any particular series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Debt Securities of any particular series is
herein referred to as an "optional sinking fund payment". If provided for by the
terms of Debt Securities of any particular series, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 12.2.
Each sinking fund payment shall be applied to the redemption of Debt Securities
of any particular series as provided for by the terms of Debt Securities of that
series.
SECTION 12.2 Satisfaction of Sinking Fund Payments With Debt
Securities.
-----------------------------------------------------
The Company (1) may deliver Outstanding Debt Securities of a series
(other than any previously called for redemption), and (2) may apply as a credit
Debt Securities of a series which have been redeemed either at the election of
the Company pursuant to the terms of such Debt Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Debt Securities, in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Debt Securities of such series required
to be made pursuant to the terms of such Debt Securities as provided for by the
terms of such series; provided, however, that such Debt Securities have not been
previously so credited. Such Debt Securities shall be received and credited for
such purpose by the Trustee for such Debt Securities at the principal amount
thereof and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 12.3 Redemption of Debt Securities for Sinking Fund.
-----------------------------------------------
Not less than 45 days prior to each sinking fund payment date for any
particular series of Debt Securities, the Company will deliver to the Trustee
for the Debt Securities of such series an Officers' Certificate specifying the
amount of the next ensuing mandatory sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash (except as otherwise specified pursuant to
Section 3.1 for the Debt Securities of that series) and the portion thereof, if
any, which is to be satisfied by delivering and crediting Debt
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Securities of that series pursuant to Section 12.2 and shall state the basis for
such credit and that such Debt Securities have not previously been so credited
and will also deliver to such Trustee any Debt Securities to be so delivered.
Such Trustee shall select the Debt Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 11.3 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 11.4. Such notice having been duly
given, the redemption of such Debt Securities shall be made upon the terms and
in the manner stated in Sections 11.5, 11.6 and 11.7.
ARTICLE 13.
SUBORDINATION OF SECURITIES
SECTION 13.1 Debt Securities to Senior Indebtedness.
---------------------------------------
The Company covenants and agrees, and each Holder of a Debt Security,
by his acceptance thereof, likewise covenants and agrees, that, to the extent
and in the manner hereinafter set forth in this Article (subject to Article 4),
the payment of the principal of and interest on each and all of the Debt
Securities are hereby expressly made subordinate and subject in right of payment
to the prior payment in full in cash of all Senior Indebtedness.
This Article 13 shall constitute a continuing offer to all persons who
become holders of, or continue to hold, Senior Indebtedness, and such provisions
are made for the benefit of the holders of Senior Indebtedness and such holders
are made obligees hereunder and any one or more of them may enforce such
provisions. Holders of Senior Indebtedness need not provide reliance on the
subordinated provisions hereof.
SECTION 13.2 Default on Senior Indebtedness.
-------------------------------
In the event and during the continuation of any default in the payment
of principal, premium, interest or any other payment due on any Senior
Indebtedness (and any applicable grace period with respect to such default has
ended and such default has not been cured or waived) or in the event that the
maturity of any Senior Indebtedness has been accelerated because of a default,
then, in either case, no payment shall be made by the Company with respect to
the principal (including redemption payments) of, or interest on, the
Securities.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee or any Holder when such payment is prohibited by the
preceding paragraph of this Section 13.2, such payment shall be held in trust
for the benefit of, and shall be paid over or delivered to, the holders of
Senior Indebtedness or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear, but only to the
extent that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee within 90 days
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of such payment of the amounts then due and owing on the Senior Indebtedness and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of Senior Indebtedness.
SECTION 13.3 Liquidation; Dissolution; Bankruptcy.
-------------------------------------
Upon any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding-up or liquidation or reorganization of
the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all principal of, and premium, if any, and
interest due or to become due upon all Senior Indebtedness (including interest
after the commencement of any bankruptcy, insolvency, receivership or other
proceedings at the rate specified in the applicable Senior Indebtedness, whether
or not such interest is an allowable claim in any such proceeding) shall first
be paid in full, or payment thereof provided for in money in accordance with its
terms, before any payment is made on account of the principal or interest on the
Securities; and upon any such dissolution or winding-up or liquidation or
reorganization any payment by the Company, or distribution of substantially all
of the assets of the Company of any kind or character, whether in cash, property
or securities, to which the Holders of the Security or the Trustee would be
entitled, except for the provisions of this Article 13, shall be paid by the
Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or
other Person making such payment or distribution, or by the Holders of the
Securities or by the Trustee under this Indenture if received by them or it,
directly to the holders of Senior Indebtedness (pro rata to such holders on the
basis of the respective amounts of Senior Indebtedness held by such holders, as
calculated by the Company) or their representative 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
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distribution shall be held in trust for the benefit of and shall be paid over or
delivered to the holders of Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any Senior Indebtedness may have been issued,
as their respective interests may appear, as calculated by the Company, for
application to the payment of all Senior Indebtedness remaining unpaid to the
extent necessary to pay all Senior Indebtedness in full in money in accordance
with its terms, after giving effect to any concurrent payment or distribution to
or for the holders of such Senior Indebtedness.
Any holder of Senior Indebtedness may file any proof of claim or
similar instrument on behalf of the Trustee and the Holders if such instrument
has not been filed by the date which is 30 days prior to the date specified for
filing thereof.
For purposes of this Article 13, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article 13 with respect
to the Securities to the payment of all Senior Indebtedness that may, at the
time, be outstanding, provided, however, that (i) the Senior Indebtedness is
assumed by the new corporation, if any, resulting from any such reorganization
or readjustment, and (ii) the rights of the holders of the Senior Indebtedness
are not, without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article 8 hereof shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section 8 if
such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article 8 hereof.
Nothing in Section 13.2 or in this Section 13.3 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 6.7.
SECTION 13.4 Subrogation.
------------
Subject to the payment in full of all Senior Indebtedness, the rights
of the Holders of the Securities shall be subrogated to the rights of the
holders of Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to the Senior Indebtedness
until the principal of (and premium, if any) and interest on the Securities
shall be paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of any cash, property or
securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article 13, and no payment over
pursuant to the provisions of this Article 13, to or for the benefit of the
holders of Senior Indebtedness by Holders of the Securities or the Trustee,
shall, as between the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be a payment by
the Company to or on account of the Senior Indebtedness. It is understood that
the provisions of this Article 13
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are and are intended solely for the purposes of defining the relative rights of
the Holders of the Securities, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
Nothing contained in this Article 13 or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of (and premium, if any)
and interest on the Securities as and when the same shall become due and payable
in accordance with their terms, or is intended to or shall affect the relative
rights of the Holders of the Securities and creditors of the Company other than
the holders of the Senior Indebtedness, nor shall anything herein or therein
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article 13 of the holders of Senior
Indebtedness in respect of cash, property or securities of the Company received
upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article 13, the Trustee, subject to the provisions of Section 6.1, and
the Holders of the Securities, shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which such dissolution,
winding-up, liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidation trustee, agent
or other Person making such payment or distribution, delivered to the Trustee or
to the Holders of the Securities, for the purposes of ascertaining the Persons
entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article 13.
SECTION 13.5 Trustee to Effectuate Subordination.
------------------------------------
Each Holder of a Security by acceptance thereof authorizes and directs
the Trustee on such Holder's behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article 13 and
appoints the Trustee such Holder's attorney-in-fact for any and all such
purposes.
SECTION 13.6 Notice by the Company.
----------------------
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company that would prohibit the making
of any payment of monies to or by the Trustee in respect of the Securities
pursuant to the provisions of this Article 13. Notwithstanding the provisions of
this Article 13 or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts that would prohibit the
making of any payment of monies to or by the Trustee in respect of the
Securities pursuant to the provisions of this Article 13, unless and until a
Responsible Officer of the Trustee shall have received written notice thereof at
the Corporate Trust Office of the Trustee from the Company or a holder or
holders of
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Senior Indebtedness or from any trustee therefor; and before the receipt of any
such written notice, the Trustee, subject to the provisions of Section 6.1,
shall be entitled, in all respects, to assume that no such facts exist;
PROVIDED, HOWEVER, that if the Trustee shall not have received the notice
provided in this Section 13.6 at least two Business Days prior to the date upon
which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of (or premium, if
any) or interest on any Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purposes for which they were
received, and shall not be affected by any notice to the contrary that may be
received by it within two Business Days prior to such date.
The Trustee, subject to the provisions of Section 6.1, shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee on
behalf of such holder) to establish that such notice has been given by a holder
of Senior Indebtedness or a trustee on behalf of any such holder or holders. In
the event that the Trustee determines, in good faith, that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article 13, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article 13, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 13.7 Rights of the Trustee; Holders of Senior Indebtedness.
------------------------------------------------------
The Trustee, in its individual capacity, shall be entitled to all the
rights set forth in this Article 13 in respect of any Senior Indebtedness at any
time held by it, to the same extent as any other holder of Senior Indebtedness,
and nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder. Nothing in this Article 13 shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 6.7.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article 13, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness and, subject to the
provisions of Section 6.1, the Trustee shall not be liable to any holder of
Senior Indebtedness if it shall pay over or deliver to holders of Securities,
the Company or any other Person money or assets to which any holder of Senior
Indebtedness shall be entitled by virtue of this Article 13 or otherwise.
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SECTION 13.8 Subordination May Not be Impaired.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall, at any time, in any way, be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by an
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such holder may have or
otherwise be charged with.
Without, in any way, limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Senior Indebtedness or otherwise amend or supplement in any manner Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the collection
of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights
against the Company and any other Person.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture dated
as of ___________, 1997 to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the ____ day of ________,
1997.
AMERICAN FINANCIAL GROUP, INC.
[SEAL]
By:
-----------------------------------
Title
--------------------------
[SEAL] FIRSTAR BANK, N.A., Trustee
By:
-----------------------------------
Title
--------------------------
1
Exhibit 4.9
CERTIFICATE OF TRUST
OF
AMERICAN FINANCIAL CAPITAL TRUST II
This Certificate of Trust is being executed as of February 3, 1997 for
the purpose of organizing a business trust pursuant to the Delaware Business
Trust Act, 12 DEL. C. section 3801 ET SEQ. (the "Act").
The undersigned hereby certifies as follows:
1) NAME. The name of the business trust is "American Financial Capital
Trust II" (the "Trust").
2) DELAWARE TRUSTEE. The name and business address of the Delaware
resident trustee of the Trust meeting the requirements of Section 3807 of the
Act are as follows:
The Bank of New York (Delaware)
Route 273
Newark, Delaware 19711
3) EFFECTIVE. This Certificate of Trust, which may be executed in
counterparts, shall be effective immediately upon filing in the Office of the
Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the
Trust, have duly executed this Certificate of Trust as of the day and year first
above written.
THE BANK OF NEW YORK (Delaware),
as Delaware Trustee
By: /s/ Mary Jane Morrissey
-----------------------------------
Name: Mary Jane Morrissey
Title: Authorized Signatory
THE BANK OF NEW YORK,
as Property Trustee
By: /s/ Mary Jane Morrissey
-----------------------------------
Name: MARY JANE MORRISSEY
Title: VICE PRESIDENT
/s/ JAMES E. EVANS
---------------------------------------
JAMES E. EVANS, as Trustee
/s/ THOMAS E. MISCHELL
---------------------------------------
THOMAS E. MISCHELL, as Trustee
1
Exhibit 4.10
DECLARATION OF TRUST
DECLARATION OF TRUST, dated as of February 3, 1997, between American
Financial Group, Inc., an Ohio corporation, as Sponsor, The Bank of New York
(Delaware), a Delaware banking corporation, as Delaware Trustee, The Bank of
New York, a New York banking corporation, as Property Trustee, and James E.
Evans and Thomas E. Mischell as Regular Trustees (collectively with the Delaware
Trustee and the Property Trustee, the "Trustees"). The Sponsor and the Trustees
hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "American
Financial Capital Trust II", in which name the Trustees, or the Sponsor to the
extent provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trustees the sum of Ten Dollars ($10.00). The Trustees hereby acknowledge
receipt of such amount in trust from the Sponsor, which amount shall constitute
the initial trust estate. The Trustees hereby declare that they will hold the
trust estate in trust for the Sponsor. It is the intention of the parties hereto
that the Trust created hereby constitute a business trust under Chapter 38 of
Title 12 of the Delaware Code, 12 DEL. C. section 3801 ET SEQ. (the "Business
Trust Act"), and that this document constitute the governing instrument of the
Trust. The Trustees are hereby authorized and directed to execute and file a
certificate of trust with the Delaware Secretary of State in the form attached
hereto.
3. The Sponsor and the Trustees will enter into an amended and restated
Declaration of Trust, satisfactory to each such party and substantially in the
form to be included as an Exhibit to the Registration Statement referred to
below, to provide for the contemplated operation of the Trust created hereby and
the issuance of the Preferred Securities and Common Securities referred to
therein. Prior to the execution and delivery of such amended and restated
Declaration of Trust, the Trustees shall not have any duty or obligation
hereunder or with respect to the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such execution and
delivery and licenses, consents or approvals required by applicable law or
otherwise.
4. The Sponsor and the Regular Trustees hereby authorize and direct the
Sponsor, in each case on behalf of the Trust as the sponsor of the Trust, (i) to
execute and file with the Securities and Exchange Commission (the "Commission")
(a) a Registration Statement on Form S-3 (the "Registration Statement") and any
pre-effective or post-effective amendments to such Registration Statement,
relating to the registration under the Securities Act of 1933, as amended, of
the Preferred Securities of the Trust, and (b) a Registration Statement on Form
8-A (the "1934 Act Registration Statement") (including all pre-effective and
post-effective amendments thereto) relating to the registration of the Preferred
Securities of the Trust under Section 12(b) of the Securities Exchange Act of
1934, as amended; (ii) to execute and file with the New York Stock Exchange, the
American Stock Exchange or such other national securities exchange or the Nasdaq
National Market System as the Sponsor shall determine, a listing or other
similar application and all other applications, statements, certificates,
agreements and other instruments as shall be
2
necessary or desirable to cause the Preferred Securities to be listed or
approved for quotation on the New York Stock Exchange, the American Stock
Exchange or such other national securities exchange or the Nasdaq National
Market System; (iii) to execute and file such applications, reports, surety
bonds, irrevocable consents, appointments of attorneys for service of process
and other papers and documents as shall be necessary or desirable to register
the Preferred Securities under the securities or "Blue Sky" laws of such
jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or
desirable; and (iv) to negotiate and execute an underwriting agreement among the
Trust, the Sponsor, an investment banking firm or firms of national reputation
and the other parties thereto relating to the offer and sale of the Preferred
Securities. It is hereby acknowledged and agreed that in connection with any
execution, filing or document referred to in clauses (i)-(iii) above, (A) any
Regular Trustee (or his attorneys-in-fact and agents or the Sponsor as permitted
herein) is authorized on behalf of the Trust to file and execute such document
on behalf of the Trust, provided that the Registration Statement shall be signed
by all of the Regular Trustees, and (B) the Property Trustee and the Delaware
Trustee shall not be required to join in any such filing or execute on behalf of
the Trust any such document unless required by the rules and regulations of the
Commission, the New York Stock Exchange (or such other national securities
exchange or the Nasdaq National Market System) or state securities or "Blue Sky"
laws, and in such case only to the extent so required. In connection with all of
the foregoing, each Regular Trustee, solely in its capacity as Trustee of the
Trust, hereby constitutes and appoints James C. Kennedy and Karl J. Grafe, or
either of them, as his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for such Regular Trustee or in the
Regular Trustee's name, place and stead, in any and all capacities, to sign the
Registration Statement, the 1934 Act Registration Statement and any and all
amendments (including post-effective amendments) thereto, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully to all intents and purposes as such
Regular Trustee might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitute or substitutes, shall do
or cause to be done by virtue hereof
5. This Declaration of Trust may be executed in one or more counterparts.
6. The number of Trustees initially shall be four (4) and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor which may increase or decrease the
number of Trustees; provided that, to the extent required by the Business Trust
Act, one Trustee shall be an entity that has its principal place of business in
the State of Delaware. Subject to the foregoing, the Sponsor is entitled to
appoint or remove without cause any Trustee at any time. The Trustees may resign
upon thirty days prior notice to the Sponsor.
-2-
3
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
AMERICAN FINANCIAL GROUP, INC.,
as Sponsor
By: /s/ James C. Kennedy
-----------------------------------
Name: James C. Kennedy
Title: Deputy General Counsel secretary
THE BANK OF NEW YORK (Delaware),
as Delaware Trustee
By: /s/ Mary Jane Morrissey
-----------------------------------
Name: Mary Jane Morrissey
Title: Authorized Signatory
THE BANK OF NEW YORK,
as Property Trustee
By: /s/ Mary Jane Morrissey
-----------------------------------
Name: MARY JANE MORRISSEY
Title: VICE PRESIDENT
/s/ JAMES E. EVANS
---------------------------------------
JAMES E. EVANS, as Trustee
/s/ THOMAS E. MISCHELL
---------------------------------------
THOMAS E. MISCHELL, as Trustee
-3-
1
American Financial Group, Inc.
June 29, 1999
Page 1
EXHIBIT 5.1
[KMK Letterhead]
PAUL V. MUETHING
DIRECT DIAL: (513)579-6517
FACSIMILE: (513)579-6956
E-MAIL: PMUETHING@KMKLAW.COM
June 29, 1999
American Financial Group, Inc.
One East Fourth Street
Cincinnati, Ohio 45202
Ladies and Gentlemen:
We have acted as counsel to American Financial Group, Inc., an Ohio
corporation (the "Company") and American Financial Capital Trust II, a Delaware
business trust (the "Trust") in connection with the registration under the
Securities Act of 1933 (the "Act"), pursuant to a registration statement on Form
S-3 (the "Registration Statement") of up to $500,000,000 of (i) shares of Common
Stock of the Company (the "Common Stock"); (ii) debt securities of the Company
(the "Debt Securities"); (iii) Preferred Securities of the Trust (the "Preferred
Securities"); and (iv) the guarantee by the Company (the "Guarantee") of certain
obligations of the Trust pursuant to the Preferred Securities and common
securities to be issued by the Trust, which Guarantee will be evidenced by
agreements in substantially the form attached or incorporated by reference as an
exhibit to the Registration Statement (collectively, the "Guarantee Agreement").
The Common Stock, Debt Securities, Guarantees and Preferred Securities are
herein collectively referred to as the "Offered Securities"). Capitalized terms
used but not defined herein have the respective meanings ascribed to them in the
Registration Statement.
We have, as counsel, examined such corporate records, certificates of
public officials and officers of the Company and other documents and reviewed
such questions of law as we have deemed necessary or appropriate to enable us to
render the opinions expressed below. In rendering such opinions, we have assumed
the genuineness of all signatures and the authenticity of all documents examined
by us and the legal capacity of natural persons who are parties to the documents
examined by us. As to various questions of fact material to such opinions, we
have relied upon representations of the Company.
In connection with the opinions expressed below, we have further
assumed that (i) the Board of Directors of the Company or, to the extent
permitted by the Ohio General Corporation Law, a duly
2
American Financial Group, Inc.
June 29, 1999
Page 2
constituted and acting committee thereof (such Board of Directors or Committee
being referred to herein as the "Board") will have duly established the terms of
the applicable Offered Securities and duly authorized the issuance and sale of
such Offered Securities and such authorization will not have been modified or
rescinded; (ii) the Registration Statement, and any amendments thereto
(including post-effective amendments), will have become effective under the Act
and will not have been terminated or rescinded; (iii) a prospectus supplement as
contemplated by the Registration Statement will have been prepared and filed
with the Securities and Exchange Commission describing the Offered Securities
offered thereby; (iv) all Offered Securities will be issued and sold in
compliance with applicable federal and state securities laws and in the manner
stated in the Registration Statement and the appropriate prospectus supplement;
(v) there will not have occurred any change in the law affecting the validity or
enforceability of the Offered Securities; and (vi) a definitive purchase,
underwriting, sales agency or similar agreement with respect to the Offered
Securities will have been duly authorized and validly executed and delivered by
the Company and/or the Trust and the other parties thereto.
Based upon the foregoing, and subject to the assumptions,
qualifications, limitations and exceptions set forth herein, we are of the
opinion that:
1. When (i) the Board has taken all necessary corporate action to
approve the issuance and sale of the Common Stock and (ii) the Common Stock has
been duly issued and sold as contemplated by the Registration Statement and any
prospectus supplement, such shares of Common Stock will be validly issued, fully
paid and nonassessable.
2. When (i) the terms of the Debt Securities and of their issuance and
sale have been duly established in conformity with the applicable Indenture in
substantially the form attached as an exhibit to the Registration Statement so
as not to violate any applicable law or result in a default under or breach of
any agreement or instrument binding upon the Company and so as to comply with
any requirement or restriction imposed by any court or governmental body having
jurisdiction over the Company; and (ii) the Debt Securities have been duly
executed and authenticated in accordance with the applicable Indenture and
issued and sold as contemplated in the Registration Statement and any prospectus
supplement, the Debt Securities will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms, except
as the enforceability thereof may be limited by (a) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other similar laws now or
hereafter in effect relating to or affecting the enforcement of creditor's
rights generally and (b) equitable principles of general applicability,
regardless of whether considered in a proceeding at law or in equity.
3. When (i) the Guarantee Agreement has been validly executed and
delivered by the Company and (ii) the Preferred Securities of the Trust have
been duly issued and delivered by the
3
American Financial Group, Inc.
June 29, 1999
Page 3
Trust as contemplated by the Registration Statement and any prospectus
supplement, the Guarantee will constitute valid and legally binding obligations
of the Company, enforceable in accordance with their terms, except as the
enforceability thereof may be limited by (a) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other similar laws now or
hereafter in effect relating to or affecting the enforcement of creditor's
rights generally and (b) equitable principles of general applicability,
regardless of whether considered in a proceeding at law or in equity.
This opinion is rendered solely to you in connection with the matters
described herein. This opinion may not be used or relied upon by you for any
other purpose or relied upon by or furnished to any other person without our
prior written consent, except as set forth below.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the references to this firm under the heading
"Legal Matters" in the prospectus included in the Registration Statement. In
giving such consent, we do not thereby admit that we come within the category of
persons whose consent is required under Section 7 of the Act or the rules and
regulations of the Securities and Exchange Commission thereunder.
Yours truly,
KEATING, MUETHING & KLEKAMP, P.L.L.
BY: /s/ Paul V. Muething
--------------------------------
Paul V. Muething
1
[Letterhead of Morris, Nichols, Arsht & Tunnell]
Exhibit 5.2
June 29, 1999
American Financial Capital Trust II
c/o American Financial Group, Inc.
One East Fourth Street
Cincinnati, OH 45202
Re: American Financial Capital Trust II
-----------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel to American
Financial Capital Trust II, a Delaware statutory business trust (the "Trust"),
in connection with certain matters relating to the formation of the Trust and
the proposed issuance of preferred securities in the Trust ("Preferred
Securities") to beneficial owners pursuant to and as described in the
Registration Statement (and the prospectus forming a part thereof) on Form S-3
filed with the Securities and Exchange Commission (the "Commission") by American
Financial Group, Inc., an Ohio corporation (the "Company"), and the Trust on or
about the date hereof (the "Registration Statement").
In rendering this opinion, we have examined copies of the
following documents in the forms provided to us: the Certificate of Trust of the
Trust as filed in the Office of the Secretary of State of the State of Delaware
(the "State Office") on February 4, 1997 (the "Certificate"); a Declaration of
Trust of the Trust dated as of February 3, 1997 (the "Original Governing
Instrument"); the Registration Statement; the amended and restated declaration
of trust of American Financial Capital Trust I attached as an exhibit to
Registration Statement No. 333-12537 on Form S-3 filed with the Commission on
September 24, 1996, as amended by Pre-Effective Amendment Nos. 1 and 2 thereto
(the "AFC Trust I Governing Instrument"); and a certification of good standing
of the Trust obtained as of a recent date from the State Office. In such
examinations, we have assumed the genuineness of all signatures, the conformity
to original documents of all documents
2
American Financial Capital Trust II
c/o American Financial Group, Inc.
June 29, 1999
Page 2
submitted to us as drafts or copies or forms of documents to be executed and the
legal capacity of natural persons to complete the execution of documents. We
have further assumed for purposes of this opinion: (i) the due formation or
organization, valid existence and good standing of each entity that is a party
to any of the documents reviewed by us under the laws of the jurisdiction of its
respective formation or organization; (ii) the due authorization, execution and
delivery by, or on behalf of, each of the parties thereto of the
above-referenced documents; (iii) that the Company, The Bank of New York, The
Bank of New York (Delaware) and the regular trustees of the Trust will duly
authorize, execute and deliver an amended and restated declaration of trust in
the form of the AFC Trust I Governing Instrument (the "Governing Instrument")
and all other documents contemplated thereby or by the Registration Statement to
be executed in connection with the issuance by the Trust of Preferred Securities
prior to the first issuance of the Preferred Securities; (iv) that the Preferred
Securities will be offered and sold pursuant to the prospectus forming a part of
the Registration Statement and a prospectus supplement thereto (collectively,
the "Prospectus") that will be consistent with, and accurately describe, the
terms of the Governing Instrument and all other relevant documents; (v) that no
event has occurred subsequent to the filing of the Certificate, or will occur
prior to the issuance of the Preferred Securities, that would cause a
dissolution or liquidation of the Trust under the Original Governing Instrument
or the Governing Instrument, as applicable; (vi) that the activities of the
Trust have been and will be conducted in accordance with the Original Governing
Instrument or the Governing Instrument, as applicable, and the Delaware Business
Trust Act, 12 DEL. C. section 3801 ET SEQ. (the "Delaware Act"); (vii) that
prior to the first issuance of the Preferred Securities, payment of the required
consideration therefor will have been made in accordance with the terms and
conditions of the Governing Instrument and as described in the Prospectus, and
that the Preferred Securities are otherwise issued and sold in accordance with
the terms, conditions, requirements and procedures set forth in the Governing
Instrument and as described in the Prospectus; and (viii) that the documents
examined by us are in full force and effect, express the entire understanding of
the parties thereto with respect to the subject matter thereof and have not been
amended, supplemented or otherwise modified, except as herein referenced. No
opinion is expressed with respect to the requirements of, or compliance with,
federal or state securities or blue sky laws. We have not participated in the
preparation of the Registration Statement or any other offering materials
relating to the Preferred Securities and we assume no responsibility for their
contents. As to any fact material to our opinion, other than those assumed, we
have relied without independent investigation on the above-referenced documents
and on the accuracy, as of the date hereof, of the matters therein contained.
Based on and subject to the foregoing, and limited in all
respects to matters of Delaware law, it is our opinion that, upon issuance, the
Preferred Securities will constitute validly issued and, subject to the
qualifications set forth below, fully paid and nonassessable beneficial
interests in the assets of the Trust. We note that pursuant to Section 11.04 of
the Governing Instrument, the Trust may withhold amounts otherwise distributable
to a Preferred Security holder and pay over such amounts to the applicable
jurisdictions in accordance with federal, state and local
3
American Financial Capital Trust II
c/o American Financial Group, Inc.
June 29, 1999
Page 3
law and any amount withheld will be deemed to have been distributed to such
Preferred Security holder and that, pursuant to the Governing Instrument,
Preferred Security holders may be obligated to make payments or provide
indemnity or security under the circumstances set forth therein.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the use of our name under the heading
"LEGAL MATTERS" in the prospectus forming a part thereof. In giving this
consent, we do not thereby admit that we come within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Commission thereunder. This opinion
speaks only as of the date hereof and is based on our understandings and
assumptions as to present facts, and on our review of the above referenced
documents and the application of Delaware law as the same exist as of the date
hereof, and we undertake no obligation to update or supplement this opinion
after the date hereof for the benefit of any person or entity with respect to
any facts or circumstances that may hereafter come to our attention or any
changes in facts or law that may hereafter occur or take effect. This opinion is
intended solely for the benefit of the addressee hereof in connection with the
matters contemplated hereby and may not be relied on by any other person or
entity or for any other purpose without our prior written consent.
Very truly yours,
MORRIS, NICHOLS, ARSHT & TUNNELL
1
Exhibit 23.1
Consent of Ernst & Young LLP, Independent Auditors
We consent to the reference to our Firm under the caption "Experts" and to the
incorporation by reference in the Registration Statement (Form S-3) for the
registration of $450 million of debt securities, common stock and trust
preferred securities and in Post-Effective Amendment No.___ to the Registration
Statement (Form S-3, No. 333-21995) and related Prospectuses of American
Financial Group, Inc. and American Financial Capital Trust II of our report
dated March 19, 1999, 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, 1998, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
Cincinnati, Ohio
June 25, 1998
1
EXHIBIT 23.4
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
June 29, 1999
1
EXHIBIT 25.5
Securities Act of 1933 File No. 333-74389
---------
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 /
--------------------------------------------------
FIRSTAR BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
A National Banking Association 31-0841368
----------------
(IRS Employer Identification No.)
425 Walnut Street
Cincinnati, Ohio 45202
------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
ROBERT T. JONES
VICE PRESIDENT AND TRUST OFFICER
Firstar Bank, National Association
425 Walnut Street
Cincinnati, Ohio 45202
(513) 632-4427
(Name, address, and telephone number of agent for services)
-----------------------------------------------------------
AMERICAN FINANCIAL GROUP, INC
-----------------------------
(Exact name of obligor as specified in its charter)
OHIO 31-1544320
------------------------ ---------------------------------
(State of Incorporation) (IRS Employer Identification No.)
ONE EAST FOURTH STREET 45202
------------------------------------------------------
(Address of principal executive offices) (Zip Code)
SUBORDINATED DEBT SECURITIES
----------------------------
(Title of the Indenture securities)
1. GENERAL INFORMATION. Furnish the following information as Trustee --
(a) Name and address of each examining or supervising authority to
which it is subject.
1
2
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.
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:
2
3
As of _______________________ (insert date within 31 days)
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
--------------------------------------------------------------
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)
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
--------------------------------------------------------------
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)
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
--------------------------------------------------------------
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
3
4
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:
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
--------------------------------------------------------------
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)
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
--------------------------------------------------------------
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)
Col. A Col. B Col. C Col. D
Amount Owned
Beneficially or
Held as Collateral Percent of
4
5
Security for Class Represented
Title of Issuer Obligations in by Amount
and Title of Amount Default by Given in
Class Outstanding Trustee Col. C
-----------------------------------------------------------------------
12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE. Except as noted in the
instructions, if the obligor is indebted to the trustee, furnish the
following information:
As of ____________________(insert date with 31 days)
Col. A Col. B Col. C
Amount
Nature of Indebtedness Outstanding Due Date
-----------------------------------------------------------------------
13. DEFAULTS BY THE OBLIGOR.
a) State whether there is or has been a default with
respect to the securities under this indenture.
Explain the nature of any such default.
b) If the Trustee is a trustee under another indenture
under which any other securities, or certificates of
interest or participation in any other securities, of
the obligor are outstanding, or is trustee for more
than one outstanding series or securities under the
indenture, state whether there has been a default
under any such indenture or series, identify the
indenture or series affected, and explain the nature
of any such default.
As of ____________ (insert date within 31 days)
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
-----------------------------------------------------------------------
14. AFFILIATIONS WITH THE UNDERWRITERS. If any underwriter is an affiliate
of the trustee (including its parent and any affiliates), described
each such affiliation.
15. FOREIGN TRUSTEE. Identify the order or rule pursuant to which the
foreign
5
6
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. Office of the Comptroller of the Currency Amendment Letter
2. A copy of the Articles of Association of Firstar Bank,
National Association, as now in effect
3. 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.
4. A copy of the authorization of The First National Bank of
Cincinnati (now Star Bank, National Association) to exercise
corporate trust powers.
5. A copy of existing By-Laws to Star Bank, National Association
(now Firstar Bank, National Association)
6. The consent of the Trustee required by section 321 (b) of the
Trust Indenture Act of 1939.
7. A copy of the latest report of condition of Firstar Bank,
National Association, published pursuant to law or the
requirements of its supervising or examining authority.
6
7
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939, the Trustee, Firstar 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 15TH DAY OF JUNE,
1999.
FIRSTAR BANK, NATIONAL ASSOCIATION
By: /S/ ROBERT T. JONES
----------------------
ROBERT T. JONES
VICE PRESIDENT AND TRUST OFFICER
7
8
EXHIBIT 1
---------
Comptroller of the Currency
Administrator of National Banks
Central District Office
One Financial Place, Suite 2700
440 South LaSalle Street
Chicago, Illinois 60605
February 11, 1999
Mr. Richard J. Hidy
Vise President and
Deputy General Counsel
StarBanc Corporation
425 Walnut Street
P.O. Box 1038, ML 9140
Cincinnati, OH 45201-1038
Dear Mr. Hidy:
The Office of the Comptroller of the Currency has received your letter
concerning the title change and the appropriate amendment to the bank's articles
of association. The Office has recorded that as of FEBRUARY 12, 1999, the title
of STAR BANK, NATIONAL ASSOCIATION, CINCINNATI, OHIO, Charter No. 24, was
changed to "FIRSTAR BANK, NATIONAL ASSOCIATION."
As a result of the Garn-St. Germain Depository Institutions Act of 1982, the OCC
is no longer responsible for the approval of national bank name changes nor does
it maintain official records on the use of alternate titles. The use of other
titles or the retention of the rights to any previously used title is the
responsibility of the bank's board of directors. Legal counsel should be
consulted to determine whether or not the new title, or any previously used
title, could be challenged by competing institutions under the provisions of
federal and state law.
Sincerely,
/S/ David J. Rogers
National Bank Examiner
8
9
EXHIBIT 2
---------
FIRSTAR BANK, NATIONAL ASSOCIATION
----------------------------------
CHARTER NO. 24
--------------
ARTICLES OF ASSOCIATION
-----------------------
FIRST: The title of this Association shall be "Firstar Bank, National
Association".
SECOND: The main office of the Association shall be in the city of Cincinnati,
County of Hamilton, State of Ohio. The general business of the Association shall
be conducted at its main office and its branches.
THIRD: The Board of Directors of this Association shall consist of not less than
five (5) nor more than twenty-five (25) shareholders, the exact number of
Directors within such minimum and maximum limits to be fixed and determined from
time to time by resolution of a majority of the full Board of Directors or by
resolution of the shareholders at any annual or special meeting thereof. Unless
otherwise provided by the laws of the United States, any vacancy in the Board of
Directors for any reason, including an increase in the number thereof, may be
filled by action of the Board of Directors.
FOURTH: The annual meeting of the shareholders for the election of Directors and
the transaction of whatever other business may be brought before said meeting
shall be held at the main office or such other place as the Board of Directors
may designate, on the day of each year specified thereof by the Bylaws, but of
no election is held on that day, it may be held on any subsequent day according
to the provisions of law; and all elections shall be held according to the
provisions of law; and all elections shall be held according to such lawful
regulations as may be prescribed by the Board of Directors.
FIFTH: The authorized amount of capital stock of this Association shall be
3,640,000 shares of common stock of the par value of five dollars ($5.00) each,
but said capital stack may be increased or decreased from time to time, in
accordance with the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any pre-emptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time determine and at such
price as the Board of Directors may from time to time fix.
The Association, at any time and from time to time, may authorize and issue debt
obligations, whether or not subordinated, without the approval of the
shareholders.
9
10
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 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, subject to such limitations as from time to time may be provided by
law; 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
10
11
TENTH (continued) 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.
11
12
EXHIBIT 3
---------
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, 1922 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
& seal of office this FIRST day of SEPTEMBER, 1922
(Signed) D. R. Crissinger
--------------------
Comptroller of the Currency
12
13
EXHIBIT 4
---------
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)
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EXHIBIT 5
---------
BY-LAWS
-------
STAR BANK, N.A.
---------------
ARTICLE I
---------
MEETINGS OF SHAREHOLDERS
------------------------
SECTION 1. ANNUAL MEETING
- ---------- --------------
The annual meeting of shareholders shall be held in the main banking house of
the Association at 11:00 a.m. on the second Tuesday in February of each year.
Notice of such meeting shall be mailed to shareholders not less than ten (10)
nor more than sixty (60) days prior to the meeting date.
SECTION 2. SPECIAL MEETINGS
- ---------- ----------------
Special meetings of shareholders may be called and held at such times and upon
such notice as is specified in the Articles of Association.
SECTION 3. QUORUM
- ---------- ------
A majority of the outstanding capital stock represented in person or by proxy
shall constitute a quorum of any meeting of the shareholders, unless otherwise
provided by law, but less than a quorum may adjourn any meeting, from time to
time, and the meeting may be held as adjourned without further notice.
SECTION 4. INSPECTORS
- ---------- ----------
The Board of Directors may, and in the event of its failure so to do, the
Chairman of the Board shall appoint Inspectors of Election who shall determine
the presence of a quorum, the validity of proxies, and the results of all
elections and all other matters voted upon by shareholders at all annual and
special meetings of shareholders.
SECTION 5. VOTING
- ---------- ------
In deciding on questions at meetings of shareholders, except in the election of
directors, each shareholder shall be entitled to one vote for each share of
stock held. A majority of votes cast shall decide each matter submitted to the
shareholders, except where by law a larger vote is required. In all elections of
directors, each shareholder shall have the right to vote the number of shares
owned by him for as many persons as there are directors to be elected, or to
cumulate such shares and give one candidate as many votes as the number of
directors multiplied by the number of his shares equal, or to distribute them on
the same principle among as many candidates as he shall think fit.
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15
SECTION 6. WAIVER AND CONSENT
- ---------- ------------------
The shareholders may act without notice and/or a meeting by a unanimous written
consent by all shareholders.
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
15
16
SECTION 7. ELECTION-AGE LIMITATION (continued)
- ---------- -----------------------
a Director until he reaches his seventy-fifth (75th) birthday.
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
- ---------- ---------------------
The Chairman of the Board shall have general executive powers and duties and
shall perform such other duties as may be assigned from time to time by the
Board of Directors. In addition, unless the Board of Directors shall have
designated the President to be the Chief Executive Officer, the Chairman of the
Board shall be the Chairman 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.
16
17
SECTION 3. CHAIRMAN OF THE BOARD (continued)
- ---------- ---------------------------------
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.
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.
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.
17
18
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.
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
18
19
SECTION 3. COMMITTEE ON AUDIT (continued)
- ---------- ------------------------------
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 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.
February 27, 1992
19
20
RESOLVED, That Article I, Section 1, Article II, Section 2 and Article IV,
Section 5 of the By-Laws of the Association be amended to state as follows:
ARTICLE I
SECTION 1 ANNUAL MEETING
- --------- --------------
The annual meeting of the shareholders shall be held in the main banking house
of the Association at 11:00 a.m. on the second Tuesday in March 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.
ARTICLE II
SECTION 2. REGULAR MEETINGS
- ---------- ----------------
The organizational meeting of the Board of directors shall be held on the same
date 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 June, September, and
December, at the main banking house, or, provided notice 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.
ARTICLE IV
SECTION 5. TRUST POLICY COMMITTEE
- ---------- ----------------------
There shall be a standing committee of this association to be known as the Trust
Policy Committee composed of officers of the Association. The Trust Policy
Committee OR SUCH OFFICERS AS MAY BE DULY DESIGNATED BY THE TRUST POLICY
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 policy committee shall be reported to the Trust
Committee.
20
21
EXHIBIT 6
---------
THE CONSENT OF THE TRUSTEE
REQUIRED BY 321 (b) OF THE ACT
Firstar 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.
FIRSTAR BANK, NATIONAL ASSOCIATION
JUNE 15, 1999 BY: /S/ ROBERT T. JONES
--------------- -----------------------
Date ROBERT T. JONES
VICE PRESIDENT AND TRUST OFFICER
21
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EXHIBIT 7
---------
CONSOLIDATED REPORT OF CONDITION
FIRSTAR BANK, N. A.
FOR MARCH 31, 1999
All schedules are to be reported in thousands of dollars. Unless
otherwise indicated, report the amount outstanding as of the last
business day of the quarter.
BALANCE SHEET
Dollar Amounts in
Thousands
ASSETS
1. Cash and balances due from depository institutions
a. Noninterest-bearing balances and currency and coin $818,380
b. Interest-bearing balances 21,607
2. Securities:
a. Held-to-maturity securities 131,272
b. Available-for-sale securities 2,059,697
3. Federal funds sold and securities purchased under 29,425
agreements to resell in domestic offices of the
bank and of its Edge and Agreements subsidiaries, and in YBFs
a. Federal funds sold 0.00
b. Securities purchased under agreements to resell 0.00
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income 12,141,715
b. LESS: Allowance for loan and lease losses 169,731
c. LESS: Allocated transfer risk reserve
d. Loans and leases, net of unearned income, allowance, and reserve 11,971,984
5. Trading assets 0
6. Premises and fixed assets (including capitalized leases) 211,109
7. Other real estate owned 306,539
8. Investments in unconsolidated subsidiaries and associated companies 9,962
9. Customers' liability to this bank on acceptances outstanding 15,686
10. Intangible assets 0
11. Other assets 1,481,347
12. Total assets $17,057,008
22
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CONSOLIDATED REPORT OF CONDITION FIRSTAR BANK, N. A.
FOR MARCH 31, 1999 CONTINUED
Dollar Amounts
in Thousands
LIABILITIES
13. Deposits:
a. In domestic offices $12,879,866
(1) Noninterest-bearing $2,439,612
(2) Interest-bearing 10,440,254
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs 16,488
(1) Noninterest-bearing 0
(2) Interest-bearing 16,488
14. Federal funds purchased and securities sold under agreements 1,196,022
to repurchase in domestic offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
a. Federal funds purchased
b. Securities sold under agreements to repurchase
15. a. Demand notes issued to the U.S. Treasury 0
b. Trading liabilities 0.00
16. Other borrowed money:
a. With original maturity of one year or less 545,244
b. With original maturity of more than one year 0
17. Mortgage indebtedness and obligations under capitalized leases
18. Bank's liability on acceptances executed and outstanding 15,686
19. Subordinated notes and debentures 363,075
20. Other liabilities 335,377
21. Total liabilities 15,351,758
22. Limited-life preferred stock and related surplus 0.00
23. Perpetual preferred stock and related surplus 0.00
24. Common Stock 18,200
25. Surplus [exclude all surplus related to preferred stock] 900,651
26. a. Undivided profits and capital reserves 773,615
b. Net unrealized holding gains (losses) on available-for-sale 12,784
securities
27. Cumulative foreign currency translation adjustments 0.00
28. Total equity capital 1,705,250
29. Total liabilities, limited-life preferred stock, and equity capital $17,057,008
23
