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EXHIBIT 4(c)
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AMERICAN GENERAL CORPORATION
TO
CHEMICAL BANK
TRUSTEE
____________________________________
Indenture
____________________________________
DATED AS OF MAY ___, 1995
(JUNIOR SUBORDINATED SECURITIES)
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TABLE OF CONTENTS
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 105. Notices, etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 106. Notice to Holders of Securities; Waiver . . . . . . . . . . . . . . . . . . . . . 16
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 108. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . 16
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 110. Separability and Saving Clause . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 202. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . 18
SECTION 203. Securities in Global Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 302. Currency; Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . 22
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 305. Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . . 25
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . 27
SECTION 307. Payment of Interest; Rights Preserved . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . 31
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . 36
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 505. Trustee May Enforce Claims without Possession
of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 508. Unconditional Right of Holders to Receive
Principal, any Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 512. Control by Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 516. Special Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 604. Not Responsible for Recitals, Issuance of
Securities or for Preferred Securities . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 608. Disqualifications; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . 48
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . 48
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SECTION 610. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . 48
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 612. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . 51
SECTION 613. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 702. Preservation of Information; Communications to Holders . . . . . . . . . . . . . . 54
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE EIGHT
CONSOLIDATION, MERGER, OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and
Conveyances Permitted Subject to Certain Conditions . . . . . . . . . . . . . . . 55
SECTION 802. Rights and Duties of Successor Corporation . . . . . . . . . . . . . . . . . . . . 56
SECTION 803. Officers' Certificate and Opinion of Counsel . . . . . . . . . . . . . . . . . . . 56
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders . . . . . . . . . . . . . . . . 56
SECTION 902. Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . . . 60
SECTION 903. General Provisions Regarding Supplemental Indentures . . . . . . . . . . . . . . . 61
SECTION 904. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 905. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 906. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 907. Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . 62
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, any Premium and Interest . . . . . . . . . . . . . . . . . . 62
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 1003. Money for Securities Payments to be Held in Trust . . . . . . . . . . . . . . . . 63
SECTION 1004. Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
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SECTION 1005. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 1006. Limitations on Dividends and Certain Other Payments . . . . . . . . . . . . . . . 65
SECTION 1007. Certain Covenants Regarding the American General LLCs . . . . . . . . . . . . . . 66
SECTION 1008. Statement as to Compliance; Certain Notices . . . . . . . . . . . . . . . . . . . 68
SECTION 1009. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1010. Defeasance of Certain Obligations . . . . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1103. Selection by Trustee of Securities to be Redeemed . . . . . . . . . . . . . . . . 71
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1108. Permitted Variations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities . . . . . . . . . . . . . . 74
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . . 75
ARTICLE THIRTEEN
SUBORDINATION
SECTION 1301. Securities Subordinate to Senior Indebtedness. . . . . . . . . . . . . . . . . . . 75
SECTION 1302. Payment of Proceeds Upon Dissolution, Etc . . . . . . . . . . . . . . . . . . . . 75
SECTION 1303. No Payment When Senior Indebtedness in Default . . . . . . . . . . . . . . . . . . 77
SECTION 1304. Payment Permitted If No Default . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 1305. Subrogation To Rights of Holders of Senior Indebtedness . . . . . . . . . . . . . 78
SECTION 1306. Provisions Solely To Define Relative Rights . . . . . . . . . . . . . . . . . . . 78
SECTION 1307. Trustee To Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 1308. No Waiver of Subordination Provisions . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 1309. Trust Moneys Not Subordinated . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 1310. Notice To Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 1311. Reliance On Judicial Order or Certificate of
Liquidating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 1312. Trustee Not Fiduciary For Holders of Senior Indebtedness . . . . . . . . . . . . . 81
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SECTION 1313. Rights of Trustee As Holder of Senior Indebtedness; Preservation Of Trustee . . . . 82
SECTION 1314. Article Applicable To Paying Agents . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 1315. Reliance by Holders of Senior Indebtedness
on Subordination Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 1402. Call, Notice and Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 1403. Persons Entitled to Vote at Meetings . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 1404. Quorum; Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 1405. Determination of Voting Rights; Conduct and
Adjournment of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 1406. Counting Votes and Recording Action of Meetings . . . . . . . . . . . . . . . . . 85
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 1501. No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 1502. Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 1503. Assignment; Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
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INDENTURE, dated as of May ___, 1995, between AMERICAN GENERAL
CORPORATION, a Texas corporation (hereinafter called the "Company"), having its
principal office at 2929 Allen Parkway, Houston, Texas 77019, and CHEMICAL
BANK, a New York corporation having its principal corporate trust office at 450
West 33rd St., New York, New York 10001, as Trustee (hereinafter called the
"Trustee").
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its
lawful purposes debt securities (hereinafter called the "Securities")
evidencing its unsecured and subordinated indebtedness and has duly authorized
the execution and delivery of this Indenture to provide for the issuance of the
Securities, unlimited as to principal amount, to bear such rates of interest,
if any, to mature at such time or times, to be issued in one or more series and
to have such other provisions as shall be fixed as hereinafter provided.
It is contemplated that the Securities will be issued to evidence the
Company's indebtedness resulting from loans to be made to the Company from the
proceeds of the issuance by American General Capital, L.L.C., a Delaware
limited liability company, and American General Delaware, L.L.C., a Delaware
limited liability company, or either of them, of preferred limited liability
company interests, in one or more series, and from related capital
contributions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act
(as hereinafter defined) and the rules and regulations of the Commission (as
hereinafter defined) promulgated thereunder that are required to be part of
this Indenture and, to the extent applicable, shall be governed by such
provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH
For and in consideration of the premises and the purchase of the
Securities by the Holders (as hereinafter defined) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders
of the Securities or of any series thereof, as follows:
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided in or pursuant to this Indenture or unless the context otherwise
requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as
the singular;
(b) all other terms used herein that are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) 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, except as
otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are
generally accepted in the United States at the date of such
computation;
(d) 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;
(e) a series of Preferred Securities related to a
particular series of Securities means the series of Preferred
Securities the proceeds of the sale of which were loaned to the
Company in exchange for such series of Securities, and the Guarantee
related to such series of Preferred Securities means the Guarantee
pursuant to which the Company has guaranteed, to the extent stated
therein, the payment of dividends and certain other amounts with
respect to such series of Preferred Securities; and
(f) the term "day," unless designated as a "Business
Day," means a calendar day.
"Act," when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Amounts" means any additional amounts payable by
the Company which are designated as an "Additional Amount" in the
Securities of a particular series or by or pursuant to a supplemental
indenture, Board Resolution or other instrument authorizing such
series of Securities.
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"Additional Interest" means (i) interest that shall accrue on
any interest on the Securities of any particular series that is not
paid when due because of an extension of an interest payment period,
which shall accrue at the rate of interest specified in the Securities
of such series, the supplemental indenture, the Board Resolution or
the other instrument authorized by a Board Resolution authorizing such
series of Securities and, unless otherwise specified in such
supplemental indenture, Board Resolution or other instrument, shall
compound monthly, and (ii) the Additional Amounts, if any, payable
with respect to the Securities of any particular series.
"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.
"American General Capital" means American General Capital,
L.L.C., a Delaware limited liability company, and its successors.
"American General Capital Stock" means American General Common
Stock, American General Preferred Stock, any shares of capital stock
resulting from any reclassification or reclassifications of either of
such classes, and any other class of stock of the Company.
"American General Common Stock" means the Common Stock, par
value $.50 per share, of the Company or any other class of stock
resulting from changes or reclassifications of such Common Stock
consisting solely of changes in par value, or from par value to no par
value, or from no par value to par value. Subject to the
anti-dilution provisions of any convertible Security, however, shares
of American General Common Stock issuable on conversion of a Security
shall include only shares of the class designated as Common Stock of
the Company at the date of the supplemental indenture, Board
Resolution or other instrument authorizing such Security or shares of
any class or classes resulting from any reclassification or
reclassifications thereof and which have no preference in respect of
the payment of dividends or the distribution of assets upon any
voluntary or involuntary liquidation, dissolution or winding-up of the
Company and which are not subject to redemption by the Company,
provided that if at any time there shall be more than one such
resulting class, the shares of each such class then so issuable shall
be substantially in the proportion which the total number of shares of
such class resulting from all such reclassifications bears to the
total number of shares of such classes resulting from all such
reclassifications.
"American General Delaware" means American General Delaware,
L.L.C., a Delaware limited liability company, and its successors.
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"American General LLC" or "American General LLCs" means each
of American General Capital, American General Delaware, or, as
appropriate, American General Capital and American General Delaware,
collectively.
"American General Preferred Stock" means the Preferred Stock,
par value $1.50 per share, of the Company.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 613 to act on behalf of the Trustee to
authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper, in an official
language of the country of publication or in the English language,
customarily published on each Business Day, whether or not published
on Saturdays, Sundays or holidays, and of general circulation in the
place in connection with which the term is used or in the financial
community of such place. Where successive publications are required
to be made in Authorized Newspapers, the successive publications may
be made in the same or in different Authorized Newspapers in the same
city meeting the foregoing requirements and in each case on any
Business Day.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of one or more resolutions
certified by the Secretary or an Assistant Secretary of the Company to
have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, delivered to the
Trustee.
"Business Day" means, except as may otherwise be provided in
the Securities of any particular series, any day other than a
Saturday, Sunday or other day on which banking institutions in The
City of New York are authorized or obligated by law or executive order
to close.
"Capitalized Lease Obligation" of any Person means the
obligation to pay rent or other payment amounts under a lease of (or
other indebtedness arrangements conveying the right to use) real or
personal property of such Person which is required to be classified
and accounted for as a capital lease or a liability on the face of a
balance sheet of such Person in accordance with generally accepted
accounting principles. The stated maturity of such obligation shall
be the date of the last payment of rent or any other amount due under
such lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a penalty.
"Certificate of a Firm of Independent Public Accountants"
means a certificate signed by an independent public accountant or a
firm of independent public accountants
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who may be the independent public accountants regularly retained by
the Company or who may be other independent public accountants. Such
accountant or firm shall be entitled to rely upon an Opinion of
Counsel as to the interpretation of any legal matters relating to such
certificate.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange
Act of 1934, as amended, or, if at any time after the execution of
this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by the
Chairman, Vice Chairman, the 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
Secretary or an Assistant Secretary, of the Company, delivered to the
Trustee.
"Corporate Trust Office" means the office of the Trustee in
The City of New York at which, at any particular time, its corporate
trust business shall be principally administered, which office on the
date of execution of this Indenture is located at 450 West 33rd
Street, New York, New York 10001.
"corporation" includes corporations, associations, companies
and business trusts.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" means, with respect to any Security issuable or
issued in the form of one or more global Securities, the Person
designated as Depository by the Company in or pursuant to this
Indenture, which Person must be, to the extent required by applicable
law or regulation, a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and, if so provided with respect to
any Security, any successor to such Person. If at any time there is
more than one such Person, "Depository" shall mean, with respect to
any Securities, the qualifying entity which has been appointed with
respect to such Securities.
"Designated Senior Holder" means, with respect to any Senior
Indebtedness, the Person designated as such in accordance with the
terms of the instrument evidencing
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such Senior Indebtedness or, if no Person is so designated, any
trustee, agent, fiduciary, representative, group or Person authorized
to act on behalf of the holders of such Senior Indebtedness.
"Dollars" or "$" or any similar reference shall mean the coin
or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts, except as
may otherwise be provided in the form of Securities of any particular
series pursuant to the provisions of this Indenture.
"Event of Default" has the meaning specified in Section 501.
"Government Obligations", means securities that are (i) direct
obligations of the United States of America for the payment of which
its full faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality
of the United States of America, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by
the United States of America, which, in either case, are not callable
or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a specific
payment of interest on or principal of or other amount with respect to
any such Government Obligation held by such custodian for the account
of the holder of a depository receipt, provided that (except as
required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of such
Government Obligation or the specific payment of interest on or
principal of or other amount with respect to such Government
Obligation evidenced by such depository receipt.
"Guarantee" means the Guarantee Agreement, dated as of May
___, 1995, executed and delivered by the Company for the benefit of
the holders from time to time of the Preferred Securities of American
General Delaware, or the Guarantee Agreement, dated as of May ____,
1995, executed and delivered by the Company for the benefit of the
holders from time to time of the Preferred Securities of American
General Capital, or, where appropriate, each such Guarantee, in each
case as the same may exist at the time.
"Holder" means the Person in whose name a Security is
registered in the Security Register.
"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 particular series of
Securities established as contemplated by Section 301.
"Interest Payment Date," when used with respect to any
Security, means the Stated Maturity of an installment of interest on
such Security.
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"LLC Agreement" means either the Limited Liability Company
Agreement, dated ______________, 1995, of American General Capital,
the Limited Liability Company Agreement, dated the same date, of
American General Delaware, or, if the context so requires, each of
such Limited Liability Company Agreements, in each case as the same
may exist at the time.
"LLC Common Securities" means common limited liability company
interests in either American General Capital or American General
Delaware, as the context requires.
"Managing Member" means American General Delaware Management
Corporation, a Delaware corporation, in its capacity as the manager of
the American General LLCs, or its successor or successors in such
capacity.
"mandatory sinking fund payment" has the meaning specified in
Section 1201.
"Maturity" when used with respect to any Security, means the
date on which the principal of such Security or an installment of
principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration,
notice of redemption, notice of exercise by a Holder of an option to
elect repayment or otherwise, and includes the Redemption Date and the
date for repayment at the option of such Holder.
"Officers' Certificate" means a certificate signed by the
Chairman, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Company, which certificate complies with the requirements, if
applicable, of Section 314(e) of the Trust Indenture Act and is
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel who is
(except as otherwise expressly provided in this Indenture) an employee
of or counsel for the Company, or other counsel acceptable to the
Trustee, which opinion complies with the requirements, if applicable,
of Section 314(e) of the Trust Indenture Act.
"optional sinking fund payment" has the meaning specified in
Section 1201.
"Outstanding," when used with respect to any Securities,
means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(a) any such Security theretofore canceled by the
Trustee or delivered to the Trustee for cancellation
(including, without limitation, any Security converted or
exchanged pursuant to any conversion or exchange provisions of
such Security);
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(b) any such Security, or portion thereof, for
whose payment or redemption money or Government Obligations in
the necessary amount has been theretofore deposited pursuant
hereto with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for
the Holders of such Securities, provided that, if such
Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(c) any such Security that has been paid pursuant
to Section 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Security in respect of
which there shall have been presented to the Trustee proof
satisfactory to it that such Security is held by a bona fide
purchaser in whose hands such Security is a valid obligation
of the Company;
provided, however, that (i) in determining, during any period in which
any Securities of a series are owned by any Person other than the
Company or any other obligor upon the Securities of a series or any
Affiliate of the Company or such other obligor, whether the Holders
of the requisite principal amount of Outstanding Securities of such
series have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or whether a quorum is present at
a meeting of Holders of Securities held for the purpose of voting on
any such action, Securities of such series owned by the Company or any
other obligor upon the Securities of such series or any Affiliate of
the Company or such other obligor shall be disregarded and deemed not
to be Outstanding, and (ii) in making any such determination under
Section 512, 513, or 601(c)(3) hereof during any period in which the
Company or any such other obligor or any Affiliate of the Company or
such other obligor is the sole Holder of the Securities of such
series, the Securities of such series so owned by the Company, such
other obligor, or an Affiliate of the Company or such other obligor
shall be disregarded and deemed not to be Outstanding, except that if
a Special Trustee shall have been appointed pursuant to Section 516
during such period, then, as provided in such Section 516, the
Securities with regard to which such Special Trustee shall have voting
power shall, for purposes of this definition, be deemed to be owned by
such Special Trustee. In determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver or upon any such determination as
to the presence of a quorum, only Securities which the Trustee knows
to be so owned by the Company, such other obligor or an Affiliate of
the Company or such other obligor in the above circumstances shall be
so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect
to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or
such other obligor.
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"Paying Agent" means the Company or any Person authorized by
the Company to pay the principal of and any premium or interest on any
Security.
"Payment Blockage Period" has the meaning specified in Section
1303.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment," when used with respect to the Securities
of any series, means the place or places where, subject to the
provisions of Section 1002, the principal of, and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306
in exchange for or in lieu of a mutilated, destroyed, lost or stolen
Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"Preferred Securities" means any series of Preferred
Securities, as that term is defined in the LLC Agreements, issued by
American General Delaware or American General Capital.
"Proceeding" has the meaning specified in Section 1302.
"Redemption Date," when used with respect to any Security or
portion thereof to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security or
portion thereof to be redeemed, means the price at which it is to be
redeemed as determined by or pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date, if any,
specified for that purpose as contemplated by Section 301, whether or
not a Business Day.
"Responsible Officer," when used with respect to the Trustee,
means any officer of the Trustee assigned by it to administer
corporate trust matters.
"Security" or "Securities" means any Security or Securities,
as the case may be, authenticated and delivered under this Indenture;
provided, however, that, if at any time
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there is more than one Person acting as Trustee under this Indenture,
"Securities," with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however,
of Securities of any series as to which such Person is not Trustee.
"Securities Payment" has the meaning specified in Section 1302.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" means the principal of and any premium
and interest on, and any other payment due pursuant to, any of the
following, whether outstanding on the date of execution of this
Indenture or thereafter incurred, created or assumed:
(i) all obligations of the Company for money
borrowed;
(ii) all obligations of the Company evidenced by
notes, debentures, bonds or other securities, including,
without limitation, the 13 1/2% Restricted Subordinated Notes
Due 2002 of the Company issued pursuant to an Indenture, dated
as of January 3, 1994, between the Company and Texas Commerce
Bank, National Association and any obligations incurred,
created or assumed in connection with the acquisition of
property, assets or businesses;
(iii) all Capitalized Lease Obligations of the
Company;
(iv) all reimbursement obligations of the Company
with respect to letters of credit, bankers' acceptances or
similar facilities issued for the account of the Company;
(v) all obligations of the Company issued or
assumed as the deferred purchase price of property or services
(but excluding trade accounts payable or accrued liabilities
arising in the ordinary course of business);
(vi) all payment obligations of the Company under
any interest rate, currency or commodity swap agreement,
option agreement, hedge agreement, forward contract, or
similar agreement designed to protect the Company or another
Person against fluctuations in interest rates, exchange rates
or commodity prices;
(vii) all obligations of the type referred to in
clauses (i) through (vi) above of another Person and all
dividends of another Person, the payment of which, in either
case, the Company has assumed or guaranteed, or for which the
Company is responsible or liable, directly or indirectly,
jointly or severally, as obligor, guarantor or otherwise; and
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(viii) all amendments, modifications, renewals,
extensions, refinancings, replacements and refundings by the
Company of any such indebtedness or obligations referred to in
clauses (i) through (vii) above (and of any such amended,
modified, renewed, extended, refinanced, replaced or refunded
indebtedness or obligations);
provided, however, that the following shall not constitute Senior
Indebtedness: (a) any indebtedness, renewal, extension, refunding,
assumption, guarantee or other obligation which provides, or in the
instrument creating, or evidencing the same or the assumption or
guarantee of the same it is expressly provided, that such
indebtedness, renewal, extension, refunding, assumption, guarantee or
other obligation is junior in right of payment to or is pari passu
with the Securities, and (b) each Guarantee. Senior Indebtedness
shall continue to be Senior Indebtedness and entitled to the benefits
of the subordination provisions irrespective of any amendment,
modification or waiver of any term of such Senior Indebtedness.
"Senior NonMonetary Default" has the meaning specified in
Section 1303.
"Senior Payment Default" has the meaning specified in Section
1303.
"Special Event Exchange," when used with respect to the
Securities of any series, means an exchange of such Securities by the
American General LLC that is the Holder thereof for all Preferred
Securities of the related series then outstanding in the circumstance
or upon the occurrence of the event or events specified in the terms
of such Preferred Securities or the Written Action authorizing such
Preferred Securities.
"Special Record Date" for the payment of any Defaulted
Interest on the Securities of any series means a date fixed by the
Trustee pursuant to Section 307.
"Special Trustee" means a special trustee appointed by the
holders of a series of Preferred Securities authorized to enforce an
American General LLC's rights under the Securities of the related
series held by such American General LLC.
"Stated Maturity," when used with respect to any Security or
any installment of principal thereof or interest (including Additional
Interest) thereon, means the fixed date on which the principal of such
Security or such installment of principal or interest is due and
payable, determined as contemplated by Section 301.
"Subsidiary" means any corporation of which at the time of
determination the Company and/or one or more Subsidiaries owns or
controls, directly or indirectly, more than 50% of the outstanding
shares of voting stock.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, and any reference herein to the Trust Indenture Act or a
particular provision thereof shall
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mean such Trust Indenture Act or provision, as the case may be, as
amended or replaced from time to time or as supplemented from time to
time by rules or regulations adopted by the Commission under or in
furtherance of the purposes of such Trust Indenture Act or provision,
as the case may be.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have
become such with respect to one or more series of Securities pursuant
to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall
mean the Trustee with respect to the Securities of that series.
"United States," except as otherwise provided in or pursuant
to this Indenture, means The United States of America (including the
States thereof and the District of Columbia), its territories and
possessions and other areas subject to its jurisdiction.
"Written Action," when used with respect to the Preferred
Securities of any series, means a written action of the Managing
Member of the American General LLC issuing such Preferred Securities
establishing the terms of such series of Preferred Securities pursuant
to the terms of the applicable LLC Agreement.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all
such conditions precedent, if any, have been complied with, provided that in
the case of any such application or request as to which the furnishing of such
documents or either of them 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
(a) a statement that each Person signing such certificate
or opinion has read such condition or covenant and the definitions
herein relating thereto;
(b) 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;
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(c) a statement that, in the opinion of each such Person,
he or it 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
(d) a statement as to whether, in the opinion of each
such Person, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate of counsel or
Opinion of Counsel or representations by counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to matters upon which his certificate or
opinion is based are erroneous. Any such certificate of counsel or Opinion of
Counsel or representations by counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with respect to
such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
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 or any Security, they may, but need not, be
consolidated and form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by or pursuant to
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 (including a Special Trustee). Any request, demand,
authorization, direction, notice, consent, waiver or other action
provided by or pursuant to this Indenture to be given or taken by
Holders of Securities of a particular series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of
such series voting in favor thereof, either in person or by proxies
duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held (which, if applicable, shall be in
accordance with the provisions of Article Fourteen), or a combination
of such instruments and any such record. Except as herein otherwise
expressly provided, such
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action shall become effective when such instrument or instruments or
record or both are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments
and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments or so voting at any such
meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and
(subject to Section 601) conclusive in favor of the Trustee and the
Company and any agent of the Trustee or the Company, if made in the
manner provided in this Section.
The record of any meeting of Holders of Securities held
pursuant to Article Fourteen shall be proved in the manner provided in
Section 1406.
Without limiting the generality of this Section 104, unless
otherwise provided in or pursuant to this Indenture, a Holder,
including a Depository that is a Holder of a global Security, may
make, give or take, by a proxy or proxies, duly appointed in writing,
any request, demand, authorization, direction, notice, consent, waiver
or other action provided in or pursuant to this Indenture to be made,
given or taken by Holders, and a Depository that is a Holder of a
global Security may provide its proxy or proxies to the beneficial
owners of interests in any such global Security through such
Depository's standing instructions and customary practices.
The Trustee may fix a record date for the purpose of
determining the Persons who are beneficial owners of interests in any
global Security held by a Depository entitled under the procedures of
such Depository to make, give or take, by a proxy or proxies duly
appointed in writing, any request, demand, authorization, direction,
notice, consent, waiver or other action provided in or pursuant to
this Indenture to be made, given or taken by Holders. If such a
record date is fixed, the Holders on such record date or their duly
appointed proxy or proxies, and only such Persons, shall be entitled
to make, give or take such request, demand, authorization, direction,
notice, consent, waiver or other action, whether or not such Holders
remain Holders after such record date. No such request, demand,
authorization, direction, notice, consent, waiver or other action
shall be valid or effective if made, given or taken more than 90 days
after such record date.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument
or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
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(c) The ownership of Securities and the principal amount
and serial numbers of Securities held by any Person, and the date of
holding the same, shall be proved by the Security Register.
(d) If the Company shall solicit from the Holders of any
Securities any request, demand, authorization, direction, notice,
consent, waiver or other action, the Company may, at its option, by
Board Resolution, fix in advance a record date for the determination
of Holders of Securities entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action, but
the Company shall have no obligation to do so. If such a record date
is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other action may be given before or after such
record date, but only the Holders of Securities of record at the close
of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or
other action, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization,
agreement or consent by the Holders of Securities on such record date
shall be deemed effective unless it shall become effective pursuant to
the provisions of this Indenture not later than six months after the
record date.
(e) Any request, demand, authorization, direction,
notice, consent, waiver or other action of the Holder of any Security
shall bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee, any Security Registrar,
any Paying Agent, any Authenticating Agent or the Company in reliance
thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trustee Administration Department, or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, by United States
first-class mail, postage prepaid, to the Company addressed to the
attention of its Treasurer at the address of its principal office
specified in the first
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paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided in or pursuant to the
provisions of this Indenture, where this Indenture provides for notice to
Holders of Securities of any event, such notice shall be sufficiently given to
Holders of Securities if in writing and mailed by United States first-class
mail, postage prepaid, to each Holder of a Security affected by such event, at
his address as it appears in the 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 Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder of a Security shall affect the sufficiency of
such notice with respect to other Holders of Securities. Any notice that is
mailed in the manner herein provided shall be conclusively presumed to have
been duly given or provided. In case by reason of the suspension of regular
mail service or by reason of any other cause it shall be impracticable to give
such notice to Holders of Securities by mail, then such notification as shall
be made with the approval of the Trustee 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 of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required to be a part of and
govern this Indenture, such required provision shall control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not, and all rights of
the Company hereunder shall inure to the benefit of such successors and
assigns.
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SECTION 110. SEPARABILITY AND SAVING CLAUSE.
In case any provision in this Indenture or in any Security shall be
invalid, illegal or unenforceable, either wholly or partially, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
No provision of this Indenture or of any Security shall require the
payment or permit the collection of interest (including any Additional
Interest) in excess of the maximum which is not prohibited by law. If any such
excess interest is provided for herein or in any Security, which shall be
adjudicated to be so provided for, then the Company shall not be obligated to
pay such interest in excess of the maximum not prohibited by law.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in any Security, express or implied,
shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent, any Authenticating Agent and their respective
successors and assigns hereunder, the Holders of Securities, and, to the
extent, but only to the extent, provided in Section 1503, the holders of Senior
Indebtedness or Preferred Securities, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities, including the validity thereof,
shall be governed by and construed in accordance with the laws of the State of
New York.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date, date for
repayment, Maturity or Stated Maturity of any Security shall not be a Business
Day, then (notwithstanding any other provision of this Indenture or the
Securities other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu of this Section)
any such payment of principal, any premium or interest (including any
Additional Interest) need not be made on such date, but may be made on the next
succeeding Business Day, except that if such Business Day is in the next
succeeding calendar year, such payment will be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the Interest Payment Date, Redemption Date, date for repayment, Maturity or
Stated Maturity, and no interest shall accrue on any amount so payable for the
period from and after such Interest Payment Date, Redemption Date, date for
repayment, Maturity or Stated Maturity, as the case may be, to such next
succeeding Business Day.
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ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS OF SECURITIES.
The Securities of each series shall be in such form or forms
(including global form) as shall be established in one or more indentures
supplemental hereto or by or pursuant to a Board Resolution in accordance with
Section 301, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by or pursuant
to this Indenture or any indenture supplemental hereto and may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements placed thereon as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange or as may consistently herewith be determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
If the forms of Securities of any series are 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 303 for the authentication and delivery of such
Securities.
The Securities of each series shall be issuable in registered form
without coupons.
The definitive Securities shall be typewritten, printed, lithographed
or engraved or produced by any combination of these methods or may be produced
in any other manner, all as determined by the officers of the Company executing
such Securities, as evidenced by their execution of such Securities.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 613, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
________________________________________
, as Trustee
By ____________________________________
Authorized Officer
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SECTION 203. SECURITIES IN GLOBAL FORM.
Unless otherwise provided in or pursuant to this Indenture, the
Securities shall not be issuable in global form. If Securities of a series
shall be issuable in global form, any such Security may provide that it or any
number of such Securities shall represent the aggregate amount of all
Outstanding Securities of such series (or such lesser amount as is permitted by
the terms thereof) from time to time endorsed thereon and may also provide that
the aggregate amount of Outstanding Securities represented thereby may from
time to time be increased or reduced to reflect exchanges. Any endorsement of
any Security in global form to reflect the amount, or any increase or decrease
in the amount, or changes in the rights of Holders, of Outstanding Securities
represented thereby shall be made in such manner and by such Person or Persons
as shall be specified therein or in the Company Order to be delivered pursuant
to Section 303 or 304 with respect thereto. Subject to the provisions of
Section 303, the Trustee shall deliver and redeliver any Security in global
form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 303 has been, or simultaneously is, delivered, any
instructions by the Company with respect to a Security in global form shall be
in writing but need not be accompanied by or contained in an Officers'
Certificate and need not be accompanied by an Opinion of Counsel.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. The terms of the
Securities in addition to or in lieu of those set forth in this Indenture shall
be determined or established in any one or more of the following ways: (1) in
one or more indentures supplemental hereto; (2) in one or more Board
Resolutions (in which case such Board Resolutions shall be included in or
attached to an Officers' Certificate setting forth such terms); or (3) in a
manner specified in or authorized by one or more Board Resolutions (in which
case such Board Resolutions and any administrative procedures relating to the
manner in which the terms of Securities are to be determined or established
shall be included in or attached to an Officers' Certificate setting forth the
manner in which such terms are to be determined or established). The terms to
be so determined or established shall include:
(a) the title of the Securities and the series in which
such Securities shall be included;
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(b) any limit upon the aggregate principal amount
of the Securities of such series which may be authenticated
and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities of such
series pursuant to Section 304, 305, 306, 907 or 1107);
(c) the date or dates on which the principal of
such Securities is payable, or the manner in which such date
or dates is to be determined, and the terms and conditions, if
any, upon which the Company may re-borrow the proceeds from
such a payment or exchange such Securities for new Securities
or other securities on any such payment date or dates;
(d) the rate or rates at which such Securities
shall bear interest, if any, or the manner in which such rate
or rates shall be determined, the date or dates from which
such interest shall accrue or the manner in which such date or
dates shall be determined, the Interest Payment Dates on which
any such interest shall be payable, or the manner in which
such Interest Payment Dates shall be determined, the Regular
Record Dates for any interest payable on such Interest Payment
Dates, and the basis upon which interest shall be calculated
if other than that of a 360-day year consisting of twelve
30-day months;
(e) the right, if any, of the Company to extend
the interest payment periods of such Securities, the maximum
duration, if any, of any such extension or extensions, the
Additional Interest, if any, payable on such Securities if any
interest payment period is extended and any notice (which
shall include the Trustee) which must be given upon the
exercise of such rights;
(f) the Place of Payment for such Securities, if
any, other than or in addition to The City of New York, and
the place or places where any such Securities may be
surrendered for registration of transfer or exchange or for
conversion or exchange and any notices and demands to or upon
the Company in respect of such Securities and this Indenture
may be served;
(g) whether such Securities are to be redeemable
at the option of the Company and, if so, the date or dates on
which, the period or periods within which, the price or prices
at which and the terms and conditions upon which such
Securities may be redeemed, in whole or in part, at the option
of the Company;
(h) the obligation, if any, of the Company to
redeem or repay such Securities pursuant to any sinking fund
or analogous provisions or to repay such Securities at the
option of a Holder thereof or upon the occurrence of one or
more specified events and, if so, the date or dates on which,
the period or periods within which (or the event or events
upon which), the price or prices at which and the other terms
and conditions upon which such Securities shall be
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redeemed or repaid, in whole or in part, pursuant to such
obligation, and any provisions for the remarketing of such
Securities so redeemed or repaid;
(i) the terms and conditions, if any, upon which
such Securities may be convertible into or exchanged for
American General Common Stock, American General Preferred
Stock or other securities of any kind, including the initial
conversion or exchange price or rate, the conversion or
exchange period, the circumstances under which any such
conversion or exchange right may expire, and any other
provision in addition to or in lieu of those set forth in this
Indenture;
(j) the denominations in which any such
Securities shall be issuable if other than denominations of
$_____ and any integral multiple thereof;
(k) whether the amount of payments of principal
of and any premium or interest (including Additional Interest)
on such Securities may be determined with reference to an
index, formula or other method or methods (which index,
formula or method or methods may be based, without limitation,
on one or more currencies, commodities, equity indices or
other indices) and, if so, the terms and conditions upon which
and the manner in which such amounts shall be determined and
paid or payable;
(l) any deletions from, modifications of or
additions to the Events of Default or covenants of the Company
with respect to such Securities, whether or not such Events of
Default or covenants are consistent with the Events of Default
or covenants set forth herein, any change in the right of the
Trustee or Holders to declare the principal of, and any
premium and interest on, such Securities due and payable, and
any additions to the definitions currently set forth in this
Indenture;
(m) the form or forms of such Securities;
(n) whether any such Securities are to be
issuable in global form, and, if so, (i) when any of such
Securities are to be issued in global form, (ii) whether
beneficial owners of interests in any such global Security may
exchange such interests for certificated Securities of such
series and of like tenor of any authorized denomination and
the circumstances under which any such exchange may occur, if
other than in the manner provided in Section 305, (iii) the
name of the Depository with respect to any global Security,
and (iv) the form of any legend or legends to be borne by any
such global Security in addition to or in lieu of the legend
referred to in Section 303;
(o) if there is more than one Trustee, the
identity of the Trustee and, if not the Trustee, the identity
of each Security Registrar, Paying Agent and Authenticating
Agent with respect to such Securities;
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(p) the applicability, if any, of Section 1010 to
the Securities of such series and any provisions in
modification of, in addition to or in lieu of any of the
provisions of Section 1010;
(q) whether and under what circumstances
Additional Amounts on such Securities or any of them shall be
payable and, if so, whether the Company has the option to
redeem such Securities rather than pay such Additional
Amounts;
(r) any restriction or condition on the
transferability of such Securities; and
(s) any other terms of such Securities (which
terms shall not be inconsistent with the provisions of this
Indenture).
All Securities of any one series shall be substantially identical
except as to the date or dates from which interest, if any, shall accrue and
denomination and except as may otherwise be provided in the terms of such
Securities determined or established as provided above. All Securities of any
one series need not be issued at the same time and, unless otherwise provided,
a series may be reopened for issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established by
action that is taken both pursuant to a Board Resolution and at or prior to the
delivery of the Officers' Certificate setting forth the terms of such series of
Securities or the manner in which such terms are to be determined or
established, then 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 Officers'
Certificate setting forth the terms of such series or the manner in which such
terms are to be determined or established.
SECTION 302. CURRENCY; DENOMINATIONS.
The principal of, premium, if any, and interest (including Additional
Interest) on the Securities shall be payable in Dollars. Unless otherwise
provided as contemplated by Section 301 with respect to any series of
Securities, any Securities of a series shall be issuable in denominations of
$_______ and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman, its Vice Chairman, its President or one of its Vice Presidents, under
its corporate seal reproduced thereon attested by its Treasurer or Secretary or
one of its Assistant Treasurers or Assistant Secretaries. The signature of any
of these officers on the Securities may be manual or facsimile.
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Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices on the date(s) such Securities were issued.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, together with the Board
Resolution and Officers' Certificate or supplemental indenture or other
instrument with respect to such Securities referred to in Sections 201 and 301
and a Company Order for the authentication and delivery of such Securities, and
the Trustee, in accordance with the Company Order and subject to the provisions
hereof, shall authenticate and deliver such Securities. If all the Securities
of any series are not to be issued at one time and if the Board Resolution or
supplemental indenture establishing such series shall so permit, such Company
Order may set forth procedures acceptable to the Trustee for the issuance of
such Securities and determining the terms of particular Securities of such
series, such as interest rate, maturity date, date of issuance and date from
which interest shall accrue. In authenticating Securities hereunder, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon,
(1) an Opinion of Counsel stating substantially to the
effect that,
(a) the form and terms of such Securities, or the
manner of determining such terms, have been established in
conformity with the provisions of this Indenture; and
(b) such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, moratorium, fraudulent
conveyance or other laws relating to or affecting the
enforcement of creditors' rights and by general equity
principles;
(2) an Officers' Certificate stating, to the best
knowledge of each signer of such certificate, that no event which is,
or after notice or lapse of time would become, an Event of Default
with respect to any of the Securities shall have occurred and be
continuing; and
(3) a copy of the LLC Agreement and Written Action of the
American General LLC issuing the series of Preferred Securities
related to such Securities, certified by the Secretary or Assistant
Secretary of the Company or by the Manager Member of such American
General LLC to be a true and correct copy thereof and in full force
and effect.
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The Trustee shall not be required to authenticate or to cause an Authenticating
Agent to authenticate such Securities if the issuance of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
that is not reasonably acceptable to the Trustee.
If all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Opinion of Counsel and Officers'
Certificate at the time of issuance of each such Security, but such opinion and
certificate shall be delivered at or before the time of issuance of the first
Security of such series to be issued.
If the Company shall establish pursuant to Section 301 that the
Securities of a series are to be issued in whole or in part in the form of one
or more global Securities, the Company shall execute and the Trustee shall, in
accordance with this Section and the Company Order with respect to such series,
authenticate and deliver one or more global Securities that (i) shall represent
and shall be denominated in an amount equal to the aggregate principal amount
of the Outstanding Securities of such series to be represented by such global
Security or Securities, (ii) shall be registered in the name of the Depository
for such global Security or Securities or the nominee of such Depository, (iii)
shall be delivered by the Trustee to such Depository or pursuant to such
Depository's instruction and (iv) shall bear a legend substantially to the
following effect (or to such other effect as may be specified in the document
authorizing such a series of Securities or as the Depository, the Trustee and
the Company may agree):
"Unless this Security is presented by an authorized
representative of The Depository Trust Company (the "Depository") (55
Water Street, New York, New York) to the issuer hereof or its agent
for registration of transfer, exchange or payment, and any security
issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of the Depository and any
payment is made to Cede & Co., any transfer, pledge or other use
hereof for value or otherwise by or to any person is wrongful since
the registered owner hereof, Cede & Co., has an interest herein.
Unless and until it is exchanged in whole or in part for
Securities in certificated form, this Security may not be transferred
except as a whole by the Depository to a nominee of the Depository or
by a nominee of the Depository to the Depository or another nominee of
the Depository or by the Depository or any such nominee to a successor
Depository or a nominee of such successor Depository".
Unless otherwise provided in the form of Security, each Security shall
be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for in Section
202 or 613 executed by or on behalf of the Trustee or an Authenticating Agent
by the manual signature of one of its authorized officers.
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Such an executed certificate of authentication upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute and deliver to the Trustee, and upon Company Order the
Trustee shall authenticate and deliver, in the manner provided in Section 303,
temporary Securities of such series which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu
of which they are issued, in registered form and with such appropriate
insertions, omissions, substitutions and other variations as the officers of
the Company executing such Securities may determine, as evidenced by their
execution of such Securities. Such temporary Securities may be in global form.
If temporary Securities of any series are issued, the Company shall
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of such definitive Securities, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series containing identical terms and provisions upon surrender of the
temporary Securities of such series at the office or agency of the Company
maintained for such purpose pursuant to Section 1002, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like aggregate principal amount
of definitive Securities of authorized denominations of the same series
containing identical terms and provisions. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at an office or agency of the
Company maintained pursuant to Section 1002 a register (each such register
being herein sometimes referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of the Securities of each series and of transfers
of the Securities of each series. Such office or agency shall be the "Security
Registrar" for the Securities, if any, of each series of Securities. In the
event that the Trustee shall not be the Security Registrar with respect to a
particular series of Securities, it shall have the right to examine the
Security Register for such series at all reasonable times. Unless and until a
successor Security Registrar is approved by a Board Resolution, Chemical Bank
shall serve as the Security Registrar for each series of Securities.
Upon surrender for registration of transfer of any Security of any
series at any office or agency of the Company maintained for that series
pursuant to Section 1002, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated
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transferee or transferees, one or more new Securities of the same series, of
any authorized denominations and of a like aggregate principal amount, bearing
a number not contemporaneously outstanding, and containing identical terms and
provisions.
At the option of the Holder, Securities of any series (except a global
Security representing all or a portion of such series) may be exchanged for
other Securities of the same series, of any authorized denominations and of a
like aggregate principal amount, containing identical terms and provisions,
upon surrender of the Securities to be exchanged at any such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities that
the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in or
pursuant to this Indenture, any global Security shall be exchangeable for
certificated Securities only if (i) the Depository is at any time unwilling,
unable or ineligible to continue as Depository and a successor depository is
not appointed by the Company within 90 days of the date the Company is so
informed in writing, (ii) the Company executes and delivers to the Trustee a
Company Order to the effect that such global Security shall be so exchangeable,
or (iii) an Event of Default has occurred and is continuing with respect to the
Securities of the same series. If the beneficial owners of interests in a
global Security are entitled to exchange such interests for certificated
Securities of such series, then without unnecessary delay but in any event not
later than the earliest date on which such interests may be so exchanged, the
Company shall deliver to the Trustee certificated Securities in such form and
denominations as are required by or pursuant to this Indenture, and of the same
series as, containing identical terms as and in aggregate principal amount
equal to the principal amount of, such global Security, executed by the
Company. On or after the earliest date on which such interests may be so
exchanged, such global Security shall be surrendered from time to time by the
Depository to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or in part, for certificated Securities as described above,
without charge, in accordance with instructions (which instructions shall be in
writing but need not be contained in or accompanied by an Officers' Certificate
or be accompanied by an Opinion of Counsel) given by the Company to the Trustee
and such Depository. The Trustee shall authenticate and make available for
delivery, in exchange for each portion of such surrendered global Security, a
like aggregate principal amount of certificated Securities of the same series
of authorized denominations and of like tenor as the portion of such global
Security to be exchanged; provided, however, that no such exchanges may occur
during a period beginning at the opening of business 15 days before any
selection of Securities for redemption of the same series and containing
identical terms and ending on the relevant Redemption Date. Promptly following
any such exchange in part, such global Security shall be returned by the
Trustee to the Depository, in accordance with the instructions of the Company
referred to above, with an endorsement thereon to reflect the decrease in the
aggregate amount of Outstanding Securities represented thereby. If a Security
is issued in exchange for any portion of a global Security after the close of
business at the office or agency for such Security where such exchange occurs
on or after (i) any Regular Record Date for such Security and before the
opening of business at such office or agency on the next Interest Payment Date,
or (ii) any Special Record Date for such Security and before
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the opening of business at such office or agency on the related proposed date
for payment of interest or Defaulted Interest, as the case may be, interest
shall not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of such Security, but shall be payable
on such Interest Payment Date or proposed date for payment, as the case may be,
only to the Person to whom interest in respect of such portion of such global
Security shall be payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitling the Holders thereof to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of transfer
or for exchange or redemption shall (if so required by the Company or the
Security Registrar) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar
therefor 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 or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 907 or 1107 not
involving any transfer.
Except as otherwise provided in or pursuant to this Indenture, the
Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the selection for redemption of Securities
of like tenor and the same series under Section 1103 or Article Twelve and
ending at the close of business on the day of the mailing of the relevant
notice of redemption, (ii) to register the transfer of or exchange any Security
so selected for redemption in whole or in part, except, in the case of any
Security to be redeemed in part, the portion thereof not to be redeemed or
(iii) to issue, register the transfer of or exchange any Security which, in
accordance with its terms, has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and principal amount, containing
identical terms and provisions and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security, and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless,
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then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall execute and upon
its request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same series and
principal amount, containing identical terms and provisions and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; RIGHTS PRESERVED.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, interest (including
Additional Interest) on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name such Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest. If a series of Securities is convertible into shares of American
General Common Stock, then, unless otherwise specified with respect to such
Securities in accordance with the provisions of Section 301, interest on such
Interest Payment Date shall be payable to each Holder on the related Regular
Record Date notwithstanding the conversion of any such Security between such
Regular Record Date and such Interest Payment Date.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, any interest (including any
Additional Interest) with respect to any Security of any series which is
payable, but is not punctually paid or duly provided for (other than by reason
of an extension of an interest payment period), on any Interest Payment Date
for such Security (herein called "Defaulted Interest") shall forthwith cease to
be payable to the Holder thereof on the relevant Regular Record Date by virtue
of having been such
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Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in subsection (a) or (b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities
affected (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such Security and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when so
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this subsection provided. Thereupon,
the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, United
States first-class postage prepaid, to each Holder of such Securities
(or their respective Predecessor Securities) at the address of such
Holder as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. The 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 an Authorized
Newspaper of general circulation in The City of 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 such Securities (or their respective
Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to
the following subsection (b).
(b) The Company may make payment of any Defaulted
Interest on such Securities in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this subsection (b), such manner
of payment shall be deemed practicable by the Trustee.
At the option of the Company, interest on Securities of any series
that bear interest may be paid by mailing a check to the address of the Person
entitled thereto as such address shall appear in the Security Register or by
transfer to an account maintained by the payee with a bank located in the
United States or by any other means permitted in the form of Securities of any
particular series pursuant to the provisions of this Indenture.
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Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered in the Security Register
as the owner and Holder of such Security for the purpose of receiving payment
of the principal of and any premium and (subject to Sections 305 and 307)
interest (including Additional Interest) on such Security and for all other
purposes whatsoever, whether or not any payment with respect to such Security
shall be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
No owner of a beneficial interest in any global Security held on its
behalf by a Depository shall have any rights under this Indenture with respect
to such global Security, and such Depository may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the owner and Holder of
such global Security for all purposes whatsoever. None of the Company, the
Trustee, any Paying Agent or the 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.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, conversion,
exchange or registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee, and any such Securities, as well as
Securities surrendered directly to the Trustee for any such purpose, shall be
promptly canceled by the Trustee. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by or pursuant to this
Indenture. All canceled Securities held by the Trustee shall be disposed of in
accordance with its customary practices, subject to applicable law.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year
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consisting of twelve 30-day months and, for any period shorter than a full
monthly interest payment period, shall be computed on the basis of the actual
number of days elapsed in such period.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further
effect with respect to any series of Securities specified in such Company
Request (except as to (i) any right to convert or exchange Securities of such
series for another security provided for in the supplemental indenture, Board
Resolution or other instrument authorizing such series of Securities, (ii) any
surviving right of registration of transfer or exchange of Securities of such
series expressly provided for herein, (iii) any right to receive payments of
the principal of, premium, if any, and interest (including Additional Interest)
on the Securities of such series from the funds described below, and (iv) any
right to receive Additional Amounts with respect to such series as provided in
the next to last paragraph of this Section 401), and the Trustee, on demand of
and at the expense of the Company, shall execute such instruments as may be
requested by the Company acknowledging satisfaction and discharge of this
Indenture with respect to such series, when
(a) either
(1) all Securities of such series theretofore
authenticated and delivered (other than Securities of such
series that have been destroyed, lost or stolen and that have
been replaced or paid as provided in Section 306, and
Securities of such series for whose payment money has
theretofore been deposited in trust or segregated and held in
trust and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been delivered
to the Trustee for cancellation; or
(2) all Securities of such series not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company,
are to be called for redemption within one
year under arrangements satisfactory to the
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Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
and the Company has irrevocably deposited or caused to be
irrevocably deposited (except as provided in Section 402(c))
with the Trustee, as trust funds and/or obligations in trust,
specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of the Securities of such series,
(A) money in an amount, or (B) Government Obligations which
through the payment of interest and principal in respect
thereof in accordance with their terms, without consideration
of any reinvestment thereof, will provide not later than the
opening of business on the due dates of any payment of the
principal, premium, if any, and interest (including any
Additional Interest) with respect thereto money in an amount
or (C) a combination thereof, sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, including the
principal of, premium, if any, and interest (including any
Additional Interest) on, such Securities to the date of such
deposit (in the case of Securities of such series which have
become due and payable) or to the Stated Maturity or Maturity
thereof, as the case may be;
(b) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(c) the Company has delivered to the Trustee a
Certificate of a Firm of Independent Public Accountants certifying as
to the sufficiency of the amounts deposited pursuant to paragraph (2)
of subsection (a) of this Section for payment of the principal,
premium, if any, and interest (including any Additional Interest) with
respect to the Securities of such series on the dates such payments
are due, and an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture as to such series of
Securities have been complied with.
If there are Securities of two or more series hereunder and if a
different Trustee has been appointed with respect to one or more of such
series, then each Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture if requested to do
so only with respect to Securities of the series as to which it is Trustee and
if the other conditions thereto are met.
If, subsequent to the date a discharge is effected pursuant to this
Section 401, Additional Amounts in excess of those established as of the date
such discharge is effected become payable in respect of the series of
Securities discharged, in order to preserve the benefits of the discharge
established hereunder, the Company shall irrevocably deposit or cause to be
irrevocably deposited in accordance with the provisions of this Section 401,
within ten Business Days prior to the date the first payment in respect of any
portion of such excess Additional Amounts becomes due, such additional funds as
are necessary to satisfy the provisions of this Section 401 as if a discharge
were being effected as of the date of such
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subsequent deposit. Failure to comply with the requirements of this paragraph
shall result in the termination of the benefits of the discharge established by
this Section 401.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to a series of Securities, the obligations with respect to the right of
registration of transfer or exchange of Securities of such series provided for
herein, the obligations of the Company under the preceding paragraph, the
obligations with respect to any conversion or exchange of Securities of such
series provided in the supplemental indenture, Board Resolution or other
instrument authorizing such series of Securities, the obligations of the
Company to the Trustee under Section 607 and, if money and/or Government
Obligations shall have been irrevocably deposited with the Trustee pursuant to
paragraph (2) of subsection (a) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
(a) Subject to the provisions of the last paragraph of
Section 1003, all money and/or Government Obligations deposited with
the Trustee pursuant to Section 401 or Section 1010 or pursuant to a
supplemental indenture entered into pursuant to Section 901(i), and
all money received by the Trustee in respect of any such Government
Obligations, shall be held in trust and applied by it, in accordance
with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine,
to the Persons entitled thereto, of the principal, premium, if any,
and interest (including any Additional Interest) for whose payment
such money has or Government Obligations have been deposited with or
received by the Trustee or to make mandatory sinking fund payments or
analogous payments as contemplated by Section 401, or Section 1010 or
any such supplemental indenture; but such money and Government
Obligations need not be segregated from other funds of the Trustee
except to the extent required by law.
(b) The Company shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against
Government Obligations deposited pursuant to Section 401 or Section
1010 or pursuant to a supplemental indenture entered into pursuant to
Section 901(i) or the interest and principal received in respect of
such obligations other than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from
time to time upon Company Request any Government Obligations or money
held by it as provided in Section 401 or Section 1010 or in any
supplemental indenture entered into pursuant to Section 901(i) which,
as expressed in a Certificate of a Firm of Independent Public
Accountants delivered to the Trustee, are then in excess of the amount
thereof which then would have been required to be deposited for the
purpose for which such obligations or money were deposited or
received.
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ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to Securities of
any series (unless otherwise specified with respect to such series of
Securities in the supplemental indenture, Board Resolution or other instrument
authorizing such series of Securities), means any one of the following events
which has occurred and is continuing (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to the provisions of Article Thirteen or any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) default in the payment of any installment of interest
(including any Additional Interest) upon any of the Securities of that
series, as and when the same shall become due and payable, and
continuance of such default for a period of 10 days; provided that (i)
a valid extension of an interest payment period by the Company
pursuant to the supplemental indenture, Board Resolution or other
instrument authorizing such series of Securities shall not constitute
a default in the payment of interest for this purpose and (ii) no such
default shall be deemed to exist if, on or prior to the date on which
such interest became due, the Company shall have made a payment
sufficient to pay such interest pursuant to the Guarantee with respect
to the series of Preferred Securities related to such series of
Securities and shall have delivered a notice to the Trustee to that
effect;
(b) default in the payment of the principal of (or
premium, if any, on) any of the Securities of that series, as and when
the same shall become due and payable whether at maturity, upon
redemption, by declaration of acceleration or otherwise, or in any
payment required by any sinking or analogous fund established with
respect to that series; provided that (i) no such default in the
payment of principal (or premium, if any) shall be deemed to exist if,
on or prior to the date such principal (and premium, if any) became
due (whether at maturity, upon redemption, by declaration of
acceleration or otherwise), the Company shall have made a payment,
sufficient to pay such principal (and premium, if any), pursuant to
the Guarantee with respect to the series of Preferred Securities
related to such series of Securities and shall have delivered a notice
to the Trustee to that effect and (ii) a valid exchange of a Security
upon its Maturity for another Security pursuant to this Indenture or
the supplemental indenture, Board Resolution or other instrument
authorizing Securities of that series shall not constitute a default
in the payment of the principal of the Security being exchanged for
this purpose;
(c) if applicable to the Securities of that series,
failure by the Company to issue the American General Preferred Stock
or American General Common Stock upon an election by the Holder or
Holders of such Securities to convert such Securities into
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shares of American General Preferred Stock or American General Common
Stock, as the case may be, pursuant to the supplemental indenture,
Board Resolution or other instrument authorizing such series of
Securities;
(d) failure on the part of the Company duly to observe or
perform in any material respect any other of the covenants or
agreements on the part of the Company with respect to that series
contained in such Securities or otherwise established with respect to
that series of Securities pursuant to Section 301 hereof or contained
in this Indenture (other than a covenant or agreement which has been
expressly included in this Indenture solely for the benefit of one or
more series of Securities other than such series) and continuance of
such failure for a period of 90 days after the date on which written
notice of such failure, requiring the same to be remedied and stating
that such notice is a "Notice of Default" hereunder, shall have been
given to the Company by the Trustee, by registered or certified mail,
or to the Company and the Trustee by a Holder or Holders of at least
25% in aggregate principal amount of the Securities of that series at
the time Outstanding or the holder or holders of at least 25% in
aggregate liquidation preference of Preferred Securities of the series
related to such series of Securities;
(e) the liquidation, dissolution or winding-up of the
American General LLC that issued the Preferred Securities of the
series related to such series of Securities, except in connection
with, or after, the exchange of such Preferred Securities for such
Securities or the related series of American General Preferred Stock,
as the case may be, or in connection with any merger, consolidation,
conveyance, transfer or lease of assets permitted by the applicable
LLC Agreement;
(f) a court having jurisdiction in the premises shall
have entered a decree or order for relief in respect of the Company in
an involuntary proceeding under any applicable United States
bankruptcy, insolvency, reorganization or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or other similar official) of the
Company or of all or any substantial part of its property, or ordering
the winding-up or liquidation of its affairs, and such decree or order
shall remain unstayed and in effect for a period of 60 consecutive
days;
(g) the Company shall have commenced a voluntary
proceeding under any applicable United States bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect, or
shall have consented to the entry of an order for relief in an
involuntary case under any such law, or shall have consented to the
appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or other similar official)
of the Company or of all or any substantial part of its property, or
shall have made an assignment for the benefit of creditors; or
(h) any other Event of Default provided with respect to
such series of Securities in the supplemental indenture, Board
Resolution or other instrument authorizing such series.
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SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing (other than an Event of Default
specified in Section 501 (f) or (g)), then, and in every such case, the Trustee
or the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of that series may declare the principal amount of all
of the Securities of that series to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by the Holders), and
upon any such declaration such principal amount shall become immediately due
and payable. If an Event of Default specified in Section 501 (f) or (g) with
respect to Securities of any series at the time Outstanding occurs and is
continuing, then, and in every such case, the principal amount of all of the
Securities of that series shall become and be immediately due and payable
without any declaration or other action on the part of the Trustee or any
Holder.
At any time after such acceleration with respect to Securities of any
series and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter provided in this Article, the Holders of
a majority in aggregate principal amount of the Outstanding Securities of that
series, by written notice to the Company and the Trustee, may, subject to the
provisions of Section 1007(b)(iii), rescind and annul such acceleration and its
consequences if:
(a) the Company has paid or deposited with the Trustee a
sum of money sufficient to pay
(1) all overdue installments of any interest
(including any Additional Interest) on all Securities of that
series;
(2) the principal of and any premium on any
Securities of that series which have become due otherwise than
by reason of such acceleration and interest thereon at the
rate or rates borne by or provided for in such Securities;
(3) to the extent that payment of such interest
is lawful, interest upon overdue installments of interest
(including Additional Interest) at the rate or rates borne by
or provided for in such Securities, and
(4) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(b) all Events of Default with respect to Securities of
that series, other than the non-payment of the principal of Securities
of that series which has become due solely by reason of such
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if
(a) default is made in the payment of any installment of
interest (including any Additional Interest) on any Security when such
interest shall have become due and payable and such default continues
for a period of 10 days, or
(b) default is made in the payment of the principal of or
any premium on any Security at its Maturity,
the Company shall, upon demand of the Trustee, pay to it, for the benefit of
the Holders of all Securities which are of the same series as such Security,
the whole amount of money then due and payable with respect to such Securities
for principal, premium, interest (including any Additional Interest) and, to
the extent that payment of such interest shall be legally enforceable, interest
upon any overdue principal (and premium, if any) and upon any overdue
installments of interest (including any Additional Interest), at the rate or
rates borne by or provided for in such series of Securities, and, in addition
thereto, such further amount of money as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the 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, may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or such Securities
or in aid of the exercise of any power granted herein or therein, or to enforce
any other proper remedy.
SECTION 504. 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 relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration of
acceleration or otherwise and irrespective of whether the Trustee shall have
made any demand on the
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Company for the payment of any overdue principal, premium, or interest) shall
be entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount, or
such lesser amount as may be provided for in the Securities of any
series, of principal, premium and interest (including any Additional
Interest) owing and unpaid in respect of the Securities and to file
such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders of Securities
allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claim and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to
the Holders of Securities, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section
607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a
Security any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize
the Trustee to vote in respect of the claim of any Holder of a Security in any
such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture or any of the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, any premium
or interest (including Additional Interest), upon presentation of the
Securities, and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
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FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: Subject to Article Thirteen, to the payment of the
amounts then due and unpaid upon the Securities for principal, any
premium and interest (including any Additional Interest) 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
aggregate amounts due and payable on such Securities for principal,
any premium and interest (including any Additional Interest),
respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. LIMITATION ON SUITS.
Subject to Section 508, no Holder of any Security of any 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
(a) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Securities of that series;
(b) the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities of that series shall
have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(e) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Securities of
that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Security to affect, disturb or prejudice the rights of
any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all of such Holders.
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SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, ANY
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Sections 305 and 307) any interest (including any Additional Interest) on such
Security, on the respective Stated Maturity or Maturities thereof expressed in
such Security (or, in the case of redemption, on the Redemption Date or, in the
case of repayment at the option of such Holder, on the date such repayment is
due) 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 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a 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 the Trustee or to such Holder, then and in every such
case the Company, the Trustee and the Holders of Securities shall, subject to
any determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and such Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders of 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 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders of Securities may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders of Securities.
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SECTION 512. CONTROL BY HOLDERS OF SECURITIES.
Subject to the provisions of Section 1007(b)(i), the Holders of a
majority in aggregate principal amount of the Outstanding Securities of any
series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee with respect to the Securities of such
series, provided that
(a) such direction shall not be in conflict with any rule
of law or with this Indenture or with the Securities of such series;
(b) the Trustee may take any other action deemed proper
by the Trustee that is not inconsistent with such direction;
(c) such direction is not unduly prejudicial to the
rights of other Holders of Securities of such series not joining in
such action; and
(d) subject to the provisions of Sections 601 and 603,
the Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a Responsible Officer
or Officers of the Trustee, determine that the proceeding so directed
would involve the Trustee in personal liability.
SECTION 513. WAIVER OF PAST DEFAULTS.
Subject to the provisions of Section 1007(b)(ii), the Holders of a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive any past
default hereunder with respect to the Securities of such series and its
consequences, except a default
(a) in the payment of the principal of or any premium or
interest (including Additional Interest) on any Security of such
series; or
(b) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent
of the Holder of each Outstanding Security of such 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; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit
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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 (other than the Company and the Trustee) 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
aggregate principal amount of the Outstanding Securities of any series, to any
suit instituted by any Holder of a Security for the enforcement of the payment
of the principal of or any premium or interest (including Additional Interest)
on any Security, on or after the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on or after the Redemption Date
or, in the case of repayment at the option of a Holder, on or after the date
such repayment is due) or interest on any overdue principal of any Security, or
to any suit instituted by any Holder of a Security for the enforcement of any
right to convert or exchange such Security into or for another security.
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
SECTION 516. SPECIAL TRUSTEE
(a) The Company expressly acknowledges that, under the
circumstances set forth in the applicable LLC Agreement or Written
Action, the holders of each series of Preferred Securities shall have
the right, prior to a Special Event Exchange of such series of
Preferred Securities, to appoint a Special Trustee if an Event of
Default with respect to the series of Securities related to such
series of Preferred Securities or certain other events specified in
such LLC Agreement or Written Action shall have occurred and be
continuing. Such Special Trustee shall be authorized to exercise the
rights and remedies of the American General LLC that issued the
Preferred Securities of such series as Holder of the related series of
Securities under this Indenture, other than the right to receive any
payments on such Securities. Without limiting the foregoing, such
Special Trustee shall be entitled to give any request, demand,
authorization, direction, notice, consent or waiver hereunder as if
it, rather than such American General LLC, were the Holder of the
Securities of such series and, in determining whether the Holders of
the requisite principal amount of Outstanding Securities of such
series have given any such request, demand, authorization, direction,
notice, consent or waiver, such
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Securities shall be deemed to be owned by the Special Trustee rather
than such American General LLC. Any Special Trustee so appointed
shall vacate office immediately in accordance with the applicable LLC
Agreement if all Events of Default or other events specified in the
applicable LLC Agreement or Written Action giving rise to such right
of appointment have been cured or waived. The Company shall notify
the Trustee when any such Special Trustee shall have been appointed
and the date on which the authority of the Special Trustee shall have
expired or terminated.
(b) Without limiting the generality of the foregoing, any
Special Trustee appointed with respect to a series of Preferred
Securities, in its own name and as Special Trustee of an express
trust, may, subject to Section 507, institute a proceeding, including,
without limitation, any suit in equity, an action at law or other
judicial or administrative proceeding, to enforce the creditor's
rights of the American General LLC that is the Holder of the related
series of Securities directly against the Company to the same extent
and subject to the same limitations as such American General LLC, as a
Holder, could do so and on behalf of such American General LLC, and
may prosecute such proceeding to judgment or final decree, and enforce
the same against the Company and, subject to Article Thirteen,
collect, out of the property, wherever situated, of the Company the
monies adjudged or decreed to be payable in the manner and to the
extent provided by law.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such
duties, and only such duties, as are specifically set forth in
this Indenture, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture,
but in the case of any such certificates or opinions which by
any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to
the requirements of this Indenture.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the
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same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its
own negligent failure to act, or its own wilful misconduct, except
that
(1) this subsection shall not be construed to
limit the effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of a majority
in aggregate principal amount of the Outstanding Securities of
any series or a Special Trustee appointed with respect to the
Securities of such series relating to the time, method and
place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture with respect to the
Securities of such series; and
(4) no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject
to the provisions of this Section.
SECTION 602. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit, in the
manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
notice of such default hereunder known to the Trustee, unless such default
shall have been cured or waived; provided, however, that, except in the case of
a default in the payment of the principal of or any premium or interest
(including Additional Interest) on any Security of such series or in the
payment of any sinking fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith
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determine that the withholding of such notice is in the interests of the
Holders of Securities of such series; and provided, further, that in the case
of any default of the character specified in Section 501(d) with respect to
Securities of such series, no such notice to Holders shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time
or both would become, an Event of Default with respect to Securities of such
series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note 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 (other than delivery of any Security to the Trustee for
authentication and delivery pursuant to Section 303 which shall be
sufficiently evidenced as provided therein) and any resolution of the
Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by or pursuant to this
Indenture at the request or direction of any of the Holders of
Securities of any series or a Special Trustee pursuant to this
Indenture, unless such Holders or Special Trustee shall have offered
to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or
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investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) the Trustee shall not be charged with knowledge of
any Event of Default (other than a default in any payment with respect
to a Security due on a fixed date and with respect to which the
Trustee is a Paying Agent) unless either (i) a Responsible Officer of
the Trustee assigned to its corporate trustee administration
department shall have actual knowledge thereof or (ii) the Trustee
shall have received written notice thereof in accordance with Section
105 from the Company, any Holder or a Special Trustee.
SECTION 604. NOT RESPONSIBLE FOR RECITALS, ISSUANCE OF SECURITIES OR
FOR PREFERRED SECURITIES.
The recitals contained herein and in the Securities (except the
Trustee's certificate of authentication) shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities, except
that the Trustee represents that it is duly authorized to execute and deliver
this Indenture, authenticate the Securities and perform its obligations
hereunder and that the statements made by it in a Statement of Eligibility on
Form T-1 supplied to the Company are true and accurate, subject to the
qualifications set forth therein. Neither the Trustee nor any Authenticating
Agent shall be accountable for the use or application by the Company of
Securities or the proceeds thereof.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of the Preferred Securities and the Trustee (as well as the Company and
any conversion agent) shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of a Preferred
Security to establish that such Person is such a holder. Prior to a Special
Event Exchange with respect to a series of Preferred Securities, the Trustee
(and any conversion agent) may conclusively rely on a certificate signed by an
officer of the Managing Member of the American General LLC that issued such
Preferred Securities or a certificate signed by an officer or representative of
a Special Trustee with respect to such series of Preferred Securities as
evidence that the holders of the necessary percentage of liquidation preference
of Preferred Securities of such series have taken any action contemplated
hereunder and shall have no duty to investigate the truth or accuracy of any
statement contained therein.
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SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Paying Agent, Security Registrar, Authenticating
Agent or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to the
provisions of the Trust Indenture Act, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Paying Agent, Security
Registrar, Authenticating Agent or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(a) to pay to the Trustee 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);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except to the extent any such expense,
disbursement or advance may be attributable to the Trustee's
negligence or willful misconduct; and
(c) to indemnify each of the Trustee and its agents for,
and to hold each of them harmless against, any loss, liability or
expense arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder or the performance of
its duties hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder, except to the
extent any such loss, liability or expense may be attributable to its
negligence or willful misconduct.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of or any premium or interest
(including Additional Interest) on particular Securities. "Trustee" for
purposes of this Section 607 includes any predecessor Trustee, but negligence
or bad faith of any Trustee shall not be attributed to any other Trustee.
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SECTION 608. DISQUALIFICATIONS; CONFLICTING INTERESTS.
If the Trustee has or shall acquire any conflicting interest, within
the meaning of the Trust Indenture Act, it shall, within 90 days after
ascertaining that it has such conflicting interest, either eliminate such
conflicting interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation or other person permitted by the Trust Indenture Act to act as
Trustee under an indenture qualified under the Trust Indenture Act and that has
a combined capital and surplus of at least $50,000,000. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Trustee under Section 611.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written notice thereof
to the Company. If the instrument of acceptance by a successor
Trustee required by Section 611 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect
to the Securities of any series by Act of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of such
series delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
608 after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
therefor by the Company or by any such Holder of a Security,
or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be
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appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by or pursuant to a Board
Resolution, may remove such Trustee with respect to all Securities as
to which it is Trustee or (ii) subject to Section 514, any Holder of a
Security who has been a bona fide Holder of a Security of any 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 with respect to all Securities of such
series and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Securities of one or more
series, the Company, by or pursuant to a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of
one or more or all of such series and that at any time there shall be
only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section
611. If, within one year after such resignation, removal or
incapability or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act
of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment in accordance with the
applicable requirements of Section 611, become the successor Trustee
with respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall
have been so appointed by the Company or the Holders of Securities and
accepted appointment in the manner required by Section 611, any Holder
of a Security who has been a bona fide Holder of a 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 Securities of such series.
(f) The Company shall give notice to the Holders of
Securities of a particular series of each resignation and each removal
of the Trustee with respect to the Securities of such series and each
appointment of a successor Trustee with respect to the Securities of
such series in the manner provided in Section 106. Each such notice
shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust
Office.
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SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee
so appointed shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts and duties hereunder of the retiring Trustee; but, on request
of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and
trusts hereunder of the retiring Trustee, and shall duly assign,
transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder, subject nevertheless to its
lien, if any, provided for in Section 607.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor Trustee
with respect to the 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
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 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
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 as co-trustees of the same trust, 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 and that no Trustee shall be responsible for any notice given
to, or received by, or any act or failure to act on the part of any
other Trustee hereunder; 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, such
retiring Trustee shall with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates have
no further responsibility for the exercise of rights and powers or for
the performance of the duties and obligations vested in the Trustee
under this Indenture other than as hereinafter expressly set forth,
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 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
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assign, transfer and deliver to such successor Trustee, to the extent
contemplated by such supplemental indenture, the property and money
held by such retiring Trustee hereunder with respect to the 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 subsection (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 shall be
qualified and eligible under this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents acceptable
to the Company with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue or exchange, registration of transfer or
partial redemption thereof or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Any such appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer of the Trustee, a copy of which instrument
shall be promptly furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall at all
times be a bank or trust company or corporation organized and doing business
and in good standing under the laws of the United States, any State thereof or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $5,000,000 and
subject to supervision or examination by Federal or State authorities. If such
Authenticating Agent publishes reports of
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condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time an Authenticating Agent
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 corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case
at any time such Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by United States first-class mail, postage
prepaid, to all Holders of Securities of the series with respect to which such
Authenticating Agent shall serve, as their names and addresses appear in the
Security Register. 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 herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation, including reimbursement of its reasonable
expenses for its services under this Section.
The provisions of Sections 308, 604 and 605 shall be applicable to
each Authenticating Agent.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternative certificate of authentication substantially in the following form:
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This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
________________________________________
as Trustee
By _____________________________________
as Authenticating Agent
By _____________________________________
Authorized Officer
If all of the Securities of any series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
by the Company, shall appoint in accordance with this Section 613, and on terms
acceptable to the Trustee, an Authenticating Agent having an office in a Place
of Payment designated by the Company with respect to such series of Securities.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS OF SECURITIES.
The Company shall furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than May 15 and November 15
in each year, commencing November 15, 1995, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the
Holders of Securities of such series as of the date not more than 15
days prior to the date of delivery thereof, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished,
provided, however, that so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished for Securities for which the
Trustee acts as Security Registrar.
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SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
The Trustee shall comply with the obligations imposed upon it pursuant
to Section 312 of the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any Authenticating Agent nor any Paying Agent nor any Security Registrar shall
be held accountable by reason of the disclosure of any information as to the
names and addresses of the Holders of Securities in accordance with Section
312(c) of the Trust Indenture Act, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 312(b)
of the Trust Indenture Act.
SECTION 703. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing
with the first May 15 after the first issuance of Securities pursuant
to this Indenture, if required by Section 313(a) of the Trust
Indenture Act, the Trustee shall transmit a brief report dated as of
such May 15 with respect to any of the events specified in said
Section 313(a) which may have occurred since the later of the
immediately preceding May 15 and the date of this Indenture.
(b) The Trustee shall transmit the reports required by
Section 313(b) of the Trust Indenture Act at the times specified
therein.
(c) Reports pursuant to this Section shall be transmitted
in the manner and to the Persons required by Sections 313(c) and (d)
of the Trust Indenture Act.
SECTION 704. REPORTS BY COMPANY.
The Company, pursuant to Section 314(a) of the Trust Indenture Act,
shall:
(a) file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies of
the annual reports and of the information, documents, and other
reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe)
which the Company may be required to file with the Commission pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934,
as amended; or, if the Company is not required to file information,
documents or reports pursuant to either of said Sections, then it
shall file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended, in respect
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of a security listed and registered on a national securities exchange
as may be prescribed from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(c) transmit to the Holders of Securities within 30 days
after the filing thereof with the Trustee, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act, such
summaries of any information, documents and reports required to be
filed by the Company pursuant to subsections (a) and (b) of this
Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, OR CONVEYANCE
SECTION 801. CONSOLIDATIONS AND MERGERS OF COMPANY AND CONVEYANCES
PERMITTED SUBJECT TO CERTAIN CONDITIONS.
The Company may consolidate with, merge with or into, or convey,
transfer or lease all or substantially all of its assets to any other Person,
provided that (a) (i) in the case of a merger, the Company is the surviving
entity in such merger, or (ii) in the case of a merger in which the Company is
not the surviving entity or in the case of a consolidation or a conveyance,
transfer or lease of assets, the Person into which the Company is merged or
which is formed by such consolidation or the Person which acquires by
conveyance, transfer or lease all or substantially all of the assets of the
Company shall be a Person duly organized and validly existing under the laws of
the United States of America or a State thereof and (x) such Person shall
expressly assume by supplemental indenture, in form satisfactory to the
Trustee, executed and delivered to the Trustee by such Person, the due and
punctual payment of the principal of and any premium and interest (including
Additional Interest) on all the Securities, according to their tenor, and the
due and punctual performance and observance of all of the other covenants of
this Indenture and the Securities to be performed by the Company, and, (y) if
any Preferred Securities are then outstanding, such Person shall expressly
assume, in a written instrument delivered to the Managing Member of the
American General LLC which issued such Preferred Securities, all of the
obligations of the Company under the Guarantee related to such Preferred
Securities, and (b) in each case, after giving effect to such consolidation,
merger, conveyance, transfer or lease, 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.
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SECTION 802. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION.
In case of any such merger in which the Company is not the surviving
entity or any such consolidation, conveyance, transfer or lease and upon any
such assumption by the successor Person, such successor Person shall succeed to
and be substituted for the Company, with the same effect as if it had been
named herein as the party of the first part, and the predecessor, except in the
event of a conveyance by way of lease, shall be relieved of any further
obligation under this Indenture and the Securities and, if applicable, the
Guarantee assumed by such successor Person. Such successor Person thereupon
may cause to be signed, and may issue either in its own name or in the name of
the Company, any or all of the Securities issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee, and,
upon the order of such successor, instead of the Company, and subject to all
the terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Securities which previously shall have
been signed and delivered by the officers of the Company to the Trustee for
authentication, and any Securities which such successor thereafter shall cause
to be signed and delivered to the Trustee for that purpose. All the Securities
so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had been issued at
the date of the execution hereof.
In case of any such merger, consolidation, conveyance, transfer or
lease, such changes in phraseology and form (but not in substance) may be made
in the Securities thereafter to be issued as may be appropriate.
SECTION 803. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL.
The Trustee, subject to the provisions of Sections 601 and 603, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such merger, consolidation, conveyance, transfer or lease,
and any such assumption by the successor Person, complies with the provisions
of this Article.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
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(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities contained; or
(b) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Company; or
(c) to add any additional Events of Default with respect
to all or any series of Securities; or
(d) to add to or change any of the provisions of this
Indenture to change or eliminate any restrictions on the payment of
principal (or premium, if any) or any interest (including Additional
Interest) with respect to Securities, to modify the provisions
relating to global Securities, or to permit the issuance of Securities
in bearer or uncertificated form, provided that any such action shall
not adversely affect the interests of the Holders of Securities of any
series in any material respect; or
(e) to add to, change or eliminate any of the provisions
of this Indenture in respect of one or more series of Securities,
provided that any such addition, change or elimination not otherwise
permitted under this Section 901 shall (i) become effective only when
there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the
benefit of such provision or (ii) not apply to any Security then
Outstanding; or
(f) to secure the Securities; or
(g) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(h) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
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
to facilitate the administration of the trusts hereunder by more than
one Trustee pursuant to the requirements of Section 611(b); or
(i) to provide that the Company shall be deemed to have
paid and discharged the entire indebtedness on all the Outstanding
Securities of any series on the 91st day after the date of the deposit
referred to in paragraph (5) hereof, and that the provisions of this
Indenture, as it relates to such Outstanding Securities shall no
longer be in effect (and the Trustee, at the expense of the Company,
shall at Company Request, execute proper instruments acknowledging the
same), except as to:
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(1) the rights of Holders of Securities to
receive, from the trust funds described in paragraph (4)
hereof, (i) payment of the principal of (and premium, if any)
and interest (including any Additional Interest) on the
Outstanding Securities of that series on the Stated Maturity
or Maturity of such principal, premium, if any, and interest
and (ii) any mandatory sinking fund payments or analogous
payments applicable to Securities of such series on the day on
which such payments are due and payable in accordance with the
terms of this Indenture and of such Securities;
(2) the Company's obligations with respect to
such Securities under Sections 305, 306, 402, 1002 and 1003,
(3) the rights, powers, trusts, duties and
immunities of the Trustee hereunder, and
(4) such other rights, if any, that are specified
in such supplemental indenture as surviving such payment and
discharge;
provided that the following conditions shall have been satisfied:
(5) with reference to such provision, the Company
has irrevocably deposited or caused to be irrevocably
deposited (except as provided in Section 402(c)) with the
Trustee, as trust funds and/or obligations in trust,
specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of the Securities of that series,
(i) money in an amount, or (ii) Government Obligations which
through the payment of interest and principal in respect
thereof in accordance with their terms, without consideration
of any reinvestment thereof, will provide not later than one
day before the due date of any payment referred to in clause
(A) or (B) of this paragraph (4) money in an amount or (iii) a
combination thereof, sufficient, as expressed in a Certificate
of a Firm of Independent Public Accountants delivered to the
Trustee, to pay and discharge (A) the principal of (and
premium, if any) and interest (including any Additional
Interest) on the Outstanding Securities of that series due on
the Stated Maturity or Maturity of such principal, premium, if
any, and/or interest and (B) any mandatory sinking fund
payments or analogous payments applicable to Securities of
such series on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of
such Securities;
(6) such deposit shall not cause the Trustee with
respect to the Securities of that series to have a conflicting
interest for purposes of the Trust Indenture Act with respect
to the Securities of any series;
(7) such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture or
any other agreement or instrument relating to borrowed money,
pursuant to which in excess of $10,000,000
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principal amount is then outstanding, to which the Company is
a party or by which it is bound;
(8) such provision would not cause the
Outstanding Securities of such series then listed on the New
York Stock Exchange to be delisted as a result thereof;
(9) no Event of Default or event which with
notice or lapse of time or both would become an Event of
Default with respect to Securities of that series shall have
occurred and be continuing on the date of such deposit or
during the period ending on the 91st day after such date;
(10) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel to the effect
that (i) the Company has received from, or there has been
published by, the United States Internal Revenue Service a
ruling, or (ii) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in
either case, to the effect that Holders of the Securities of
such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income
tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit, defeasance
and discharge had not occurred;
(11) if the Securities of such series are to be
redeemed, either notice of such redemption shall have been
given or the Company shall have given the Trustee irrevocable
directions to give notice of such redemption in the name, and
at the expense of the Company, under arrangements satisfactory
to the Trustee;
(12) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating
that all conditions precedent provided for relating to the
defeasance contemplated by such provision have been complied
with; and
(13) such supplemental indenture shall contain a
provision substantially to the same effect as the last
paragraph of Section 1010 but relating to the Securities to be
discharged under the terms of such supplemental indenture; or
(j) to add to, delete from or revise the conditions,
limitations and restrictions on the authorized amount, terms or
purposes of issue, authentication and delivery of Securities, as
herein set forth; or
(k) to make provision with respect to the conversion or
exchange rights of the Holders of any series of Securities pursuant to
the requirements of the supplemental
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indenture, Board Resolution, or other instrument establishing the
terms of such series of Securities; or
(l) subject to Section 903(a), to make any change in
Article Thirteen that would limit or terminate the benefits available
to any holder of Senior Indebtedness under such Article; or
(m) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided such
action shall not adversely affect the interests of the Holders of
Securities of any series in any material respect.
No consent of the holders of any Preferred Securities shall be
required in connection with any supplemental indenture entered into pursuant to
this Section 901.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of such Holders delivered to the Company and the
Trustee, the Company, when authorized by or pursuant to a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities of such series under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected
thereby:
(i) change the Stated Maturity of the principal of, or
any installment of principal of or interest (including Additional
Interest) on, any Security, or change any obligation of the Company to
pay Additional Amounts pursuant to Section 1004 (except as
contemplated by Section 801 and permitted by Section 901(a) and (d)),
or reduce the principal amount thereof, any premium payable upon the
redemption thereof or the rate or amount of interest (including
Additional Interest) payable thereon, or adversely affect any right of
repayment at the option of the Holder of any Security, or, subject to
the provisions of Section 1002, change any Place of Payment where, or
the coin or currency in which, the principal of any Security or any
premium or interest (including any Additional Interest) on any
Security is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date or, in the case of repayment at the option of the Holder, on or
after the date for repayment); or
(ii) adversely affect any right to convert or exchange any
Security or modify the provisions of this Indenture with respect to
the subordination of the Securities in a manner adverse to the
Holders; or
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(iii) reduce the percentage in aggregate principal amount
of the Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of compliance
with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture or
reduce the requirements of Section 1404 for quorum or voting; or
(iv) modify any of the provisions of this Section, Section
513 or Section 1009, except to increase the percentage in aggregate
principal amount of the Outstanding Securities of any series, the
consent of whose Holders is required for the actions specified herein
or therein, or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby; provided,
however, that this subsection shall not be deemed to require the
consent of any Holder of Securities with respect to changes in the
references to "the Trustee" and concomitant changes in this Section
and Section 1009, or the deletion of this proviso, in accordance with
the requirements of Section 901(h).
SECTION 903. GENERAL PROVISIONS REGARDING SUPPLEMENTAL INDENTURES.
(a) A supplemental indenture entered into pursuant to Section 901
or Section 902 may not make any change that adversely affects the rights under
Article Thirteen of any holder of Senior Indebtedness then outstanding unless
the holders of such Senior Indebtedness (or any group or representative thereof
authorized to give a consent) consent to such change. Moreover, prior to a
Special Event Exchange with respect to a series of Preferred Securities then
outstanding, no such supplemental indenture entered into pursuant to Section
902 shall amend the series of Securities related to such series of Preferred
Securities or the provisions of this Indenture benefiting such series of
Securities unless the prior approval of the holders of at least 66 2/3% of the
aggregate liquidation preference of the Preferred Securities of such series
then outstanding is obtained; provided, however, that where a consent of each
Holder of Securities of a particular series is required pursuant to Section
902, the prior consent of each holder of the related series of Preferred
Securities shall be first obtained.
(b) A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of 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 Securities of any other series (or the
holders of Preferred Securities of any series not related to such particular
series of Securities).
(c) It shall not be necessary for any Act of Holders of Securities
or action of the holders of Preferred Securities under this Section to approve
the particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act or action shall approve the substance thereof.
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SECTION 904. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modification thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 905. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 906. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 907. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Board of Directors, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, ANY PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of the Holders of
Securities of each series that it will duly and punctually pay the principal of
and any premium and interest, including any Additional Interest (subject to any
right of the Company to extend an interest payment period or, if so provided
pursuant to Section 301, to exchange a Security upon the Maturity of such
Security for another Security and subject to Section 1502) on the Securities of
that series in accordance with the terms of such series of Securities and this
Indenture.
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SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for conversion or exchange or for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be served, and the Company hereby
initially appoints the Trustee at its Corporate Trust Office as its agent to
receive all such presentations, surrenders, notices and demands. The Company
will give prompt written notice to the Trustee of the location, and any change
in the location, of each such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all of such purposes, and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in accordance with the requirements set forth
above for Securities of any series for such purposes. The Company shall give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency. Unless
otherwise set forth in, or pursuant to, a Board Resolution or any indenture
supplemental hereto with respect to a series of Securities, the Company hereby
designates as the Place of Payment for each series of Securities the Borough of
Manhattan, The City of New York, and initially appoints the Trustee at its
Corporate Trust Office as Paying Agent and as its agent to receive all such
presentations, surrenders, notices and demands.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it shall, on or before each due date of
the principal of and any premium or interest (including any Additional
Interest) on any of the Securities of that series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal, any premium and interest (including any Additional Interest) so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and shall promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it shall, on or prior to each due date of the principal
of and any premium or interest (including any Additional Interest) on any
Securities of that series, deposit with a Paying Agent a sum sufficient to pay
the principal, any premium and interest (including any Additional Interest) so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium and interest (including any Additional
Interest), and (unless such
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Paying Agent is the Trustee) the Company shall promptly notify the Trustee of
its action or failure so to act.
The Company shall cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the
principal of and any premium or interest (including any Additional
Interest) on 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 provided in or pursuant to this Indenture;
(b) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of that series) in the
making of any payment of the principal of, or premium, if any, or
interest (including any Additional Interest) on Securities of that
series; and
(c) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge or defeasance of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent, such sums
to be held by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Except as otherwise specified as contemplated by Section 301 for
Securities of any particular series, any money deposited with the Trustee or
any Paying Agent, or then held by the Company, in trust for the payment of the
principal of and any premium or interest (including any Additional Interest) on
any Security of any series and remaining unclaimed for two years after such
principal and any premium or interest (including any Additional Interest) has
become due and payable shall be paid to the Company upon Company Request along
with interest, if any, that has been accumulated thereon or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment of such principal, premium or interest (including any
Additional Interest), without interest thereon, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published
once, in an Authorized Newspaper in each Place of Payment for such series or to
be mailed to Holders of Securities of such series, or both, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from
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the date of such publication or mailing, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 1004. ADDITIONAL AMOUNTS.
If the Securities of a series provide for the payment of Additional
Amounts to the Holders of such Securities, then the Company shall pay to each
Holder of such Securities the Additional Amounts as provided therein.
Except as otherwise provided in or pursuant to this Indenture, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities upon which such Additional Amounts shall be payable (or, if the
Securities of that series shall not bear interest prior to Maturity, the first
day on which a payment of principal and any premium is made), and at least 10
days prior to each date of payment of principal and any premium or interest if
there has been any change with respect to the matters set forth in the
below-mentioned Officers' Certificate, the Company will furnish the Trustee and
the Company's Paying Agent or Paying Agents, if other than the Trustee or the
Company, with an Officers' Certificate stating the amount of the Additional
Amount payable per an amount of the principal of the Securities of such series
equal to the minimum authorized denomination of such Securities (and, if such
Additional Amounts are payable only with respect to particular Securities, then
the names of the Holders of such Securities).
SECTION 1005. CORPORATE EXISTENCE.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the rights (charter and statutory) and franchises of the Company,
provided, however, that the Company shall not be required to preserve any such
right or franchise if the Company 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
of Securities.
SECTION 1006. LIMITATIONS ON DIVIDENDS AND CERTAIN OTHER PAYMENTS.
The Company covenants, for the benefit of the Holders of each series
of Securities, that, subject to the next succeeding sentence, it shall not
declare or pay any dividend on, and it shall not, nor shall it permit any of
its Subsidiaries to, redeem, purchase, acquire or make a liquidation payment
with respect to, any shares of American General Capital Stock, or make any
guarantee payments with respect to the foregoing, if at such time (a) the
Company shall have given notice of its election to extend an interest payment
period for such series of Securities in accordance with the terms of such
Securities and such period, or any extension thereof, shall be continuing, (b)
the Company shall be in default with respect to its payment or other
obligations under the Guarantee with respect to the series of Preferred
Securities related to such series of Securities, or (c) an Event of Default
hereunder with respect to such series of Securities shall have occurred and be
continuing. The preceding sentence, however,
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shall not restrict (i) the purchase or acquisition of shares of American
General Common Stock in connection with the satisfaction by the Company or a
Subsidiary of its obligations under any employee benefit plan or the
satisfaction by the Company of its obligations pursuant to any put contract
requiring the Company to purchase any American General Common Stock, (ii) any
of the actions described in the preceding sentence resulting from any
reclassification of American General Capital Stock or the exchange or
conversion of one class or series of American General Capital Stock for another
class or series of American General Capital Stock, (iii) redemptions or
purchases of any share purchase rights issued by the Company pursuant to its
Rights Agreement, dated as of July 27, 1989, between the Company and First
Chicago Trust Company of New York, as the same may exist at the time, (iv) the
declaration and payment of a dividend or distribution of similar share purchase
rights in the future, or (v) the purchase of fractional interests in shares of
American General Capital Stock pursuant to the conversion or exchange
provisions of such American General Capital Stock or the security being
converted or exchanged. The Company covenants that it shall take all actions
necessary to ensure the compliance of its Subsidiaries with this Section 1006.
SECTION 1007. CERTAIN COVENANTS REGARDING THE AMERICAN GENERAL LLCS.
(a) The Company covenants that, prior to a Special Event Exchange
of a series of Preferred Securities which is then outstanding, the Company
shall:
(i) not cause or permit any LLC Common Securities of
the American General LLC that is the issuer of the Preferred
Securities of such series to be transferred (other than in connection
with a merger, consolidation, conveyance, transfer or lease of all or
substantially all of the assets of the holder of such LLC Common
Securities permitted by Article Eight or the applicable provisions of
the applicable LLC Agreement);
(ii) maintain direct or indirect ownership of all
outstanding LLC Common Securities and other limited liability company
interests (other than Preferred Securities) of the American General
LLC that is the issuer of the Preferred Securities of such series,
except as may be permitted by the applicable LLC Agreement;
(iii) cause at least 21% of all interests in the
capital, income, gain, loss, deduction and credit of such American
General LLC to be represented by the LLC Common Securities of such
American General LLC;
(iv) not voluntarily liquidate, dissolve or wind-up
(other than following a conveyance of all or substantially all of the
Company's assets permitted by Article Eight) or permit the Managing
Member of the American General LLC that is the issuer of the Preferred
Securities of such series, or such American General LLC, to voluntary
liquidate, dissolve or wind-up (except, in the case of the Managing
Member, following a conveyance of all or substantially all of its
assets permitted by the applicable provisions of the applicable LLC
Agreement and, in the case of such American General LLC, in connection
with or after a permitted exchange of all outstanding series of
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Preferred Securities of such American General LLC for the related
series of Securities or American General Preferred Stock);
(v) except as otherwise permitted by the applicable
LLC Agreement or Written Action, cause American General Delaware
Management Corporation to remain the Managing Member of such American
General LLC and to perform timely all of its duties as such Managing
Member (including the duty to cause such American General LLC to
declare and pay dividends on such series of Preferred Securities to
the extent set forth in the applicable LLC Agreement and the Written
Action authorizing such series of Preferred Securities); and
(vi) if so provided in the applicable Written Action
and in the supplemental indenture, Board Resolution or other
instrument authorizing the related series of Securities pursuant to
Section 301, issue and/or deliver American General Preferred Stock or
American General Common Stock, as the case may be, upon an election by
the holder or holders of the Preferred Securities of the related
series to exchange their Preferred Securities of such series for
Securities of the related series and thereafter convert such
Securities into shares of American General Preferred Stock or American
General Common Stock.
(b) The Company also covenants that, prior to a Special Event
Exchange of a series of Preferred Securities which is then outstanding, the
Company shall not permit the Managing Member of the American General LLC that
is the issuer of such series of Preferred Securities from doing any of the
following:
(i) at any time at which a Special Trustee has been
appointed with respect to such series of Preferred Securities,
directing the time, method and place of conducting any proceeding for
any remedy available to the Special Trustee or the Trustee, or the
exercise of any trust or power conferred on the Special Trustee or the
Trustee, with respect to the related series of Securities;
(ii) waiving compliance with, or any past default
under, the related series of Securities or this Indenture (to the
extent that a Holder of Securities of such series is entitled to the
benefits of the covenant or agreement waived or breached);
(iii) exercising any right to rescind or annul a
declaration that the principal of the Securities of such related
series shall be due and payable; or
(iv) consenting to any amendment, or modification of
the Securities of such related series or of this Indenture;
without, in each case, obtaining the prior approval of the holders of at least
66 2/3% of the aggregate liquidation preference of the outstanding Preferred
Securities of such series; provided, however, that, where a waiver or consent
to an amendment or modification of a Security or this Indenture under the
related series of Securities would, under this Indenture,
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require the waiver or consent of each Holder of such Securities affected
thereby, the Company shall not permit such Managing Member to grant such waiver
or consent without the prior consent of each holder of the Preferred Securities
of such series. The Company shall not permit such Managing Member to revoke
any action previously authorized or approved by a vote or the consent of the
holders of Preferred Securities of such series without the approval of the
holders of at least 66 2/3% of the aggregate liquidation preference of the
Preferred Securities of such series then outstanding (or, if such action
required the approval of each holder of Preferred Securities of such series,
then only with the approval of each such holder).
SECTION 1008. STATEMENT AS TO COMPLIANCE; CERTAIN NOTICES.
(a) The Company shall deliver to the Trustee, within
120 days after the end of each fiscal year, a written statement, which
need not comply with Section 102, signed by the principal executive
officer, the principal financial officer or the principal accounting
officer of the Company, as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture.
For purposes of this Section 1008, such compliance shall be determined
without regard to any period of grace or requirement of notice under
this Indenture.
(b) The Company shall deliver to the Trustee, no
later than the Business Day on which the event occurs, written notice
of the liquidation, dissolution or winding-up of an American General
LLC if such liquidation, dissolution or winding-up would cause the
principal of one or more series of Securities relating to the
Preferred Securities issued by such American General LLC to mature
earlier than the Stated Maturity of such Security.
(c) The Company shall deliver to the Trustee, within
five days after the occurrence thereof, written notice of any event
which after notice or lapse of time or both would become an Event of
Default pursuant to Section 501.
SECTION 1009. WAIVER OF CERTAIN COVENANTS.
(a) The Company may omit in any particular instance
to comply with any covenant or condition set forth in Section 1005 or
1006 and any covenant not currently included in this Indenture but
specified as applicable to a series of Securities as contemplated by
Section 301, with respect to the Securities of any series if, before
or after the time for such compliance, the Holders of a majority in
principal amount of the Outstanding Securities of such series (and,
prior to a Special Event Exchange with respect to the Securities of
such series, the holders of at least 66 2/3% of the aggregate
liquidation preference of the Preferred Securities of the related
series then outstanding) shall, by Act of such Holders, either waive
such compliance in such instance or generally waive compliance with
such covenant or condition.
(b) No waiver granted pursuant to this Section 1009
shall extend to or affect a covenant or condition except to the extent
so expressly waived, and, until such
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waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such covenant or condition
shall remain in full force and effect.
SECTION 1010. DEFEASANCE OF CERTAIN OBLIGATIONS.
If this Section 1010 is specified, as contemplated by Section 301, to
be applicable to Securities of any series, the Company may omit to comply with
any term, provision or condition set forth in Sections 1005 and 1006 and any
additional covenants not currently included in this Indenture specified as
applicable to the Securities of such series as contemplated by Section 301, if
(a) with reference to this Section 1010, the Company
has irrevocably deposited or caused to be irrevocably deposited
(except as provided in Section 402) with the Trustee, as trust funds
and/or obligations in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of
that series, (i) money in an amount, or (ii) Government Obligations
which through the payment of interest and principal in respect thereof
in accordance with their terms, without consideration of any
reinvestment thereof, will provide not later than one day before the
due date of any payment referred to in clause (A) or (B) of this
subsection (a) money in an amount, or (iii) a combination thereof,
sufficient, as expressed in a Certificate of a Firm of Independent
Public Accountants delivered to the Trustee, to pay and discharge (A)
the principal of (and premium, if any) and interest (including any
Additional Interest) on the Outstanding Securities of that series due
on the Stated Maturity or Maturity of such principal, premium, if any,
and interest and (B) any mandatory sinking fund payments or analogous
payments applicable to Securities of such series on the day on which
such payments are due and payable in accordance with the terms of this
Indenture and of such Securities;
(b) such deposit shall not cause the Trustee with
respect to the Securities of that series to have a conflicting
interest for purposes of the Trust Indenture Act with respect to the
Securities of any series;
(c) such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture or any
other agreement or instrument relating to the borrowing of money,
pursuant to which in excess of $10,000,000 principal amount is then
outstanding, to which the Company is a party or by which it is bound;
(d) such deposit would not cause the Outstanding
Securities of such series then listed on the New York Stock Exchange
to be delisted as a result thereof;
(e) no Event of Default or event which with notice or
lapse of time or both would become an Event of Default with respect to
Securities of that series shall have occurred and be continuing on the
date of such deposit;
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(f) the Company has delivered to the Trustee an
Opinion of Counsel to the effect that Holders of the Securities of
such series will not recognize income, gain or loss for Federal income
tax purposes as a result of such deposit and defeasance of certain
obligations and will be subject to Federal income tax on the same
amount and in the same manner and at the same times, as would have
been the case if such deposit and defeasance had not occurred;
(g) if the Securities of such series are to be
redeemed, either notice of such redemption shall have been given or
the Company shall have given the Trustee irrevocable direction to give
notice of such redemption in the name and at the expense of the
Company, under arrangements satisfactory to the Trustee; and
(h) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that all
conditions precedent herein provided for relating to the defeasance
contemplated by this Section have been complied with.
In the event that, subsequent to the date a defeasance is effected
pursuant to this Section 1010 with respect to Securities of any series,
Additional Amounts in excess of those established as of the date such
defeasance is effected become payable in respect of such Securities, in order
to preserve the benefits of the defeasance established hereunder with respect
to such series, the Company shall irrevocably deposit or cause to be
irrevocably deposited in accordance with the provisions of subsection (a) of
this Section 1010, within ten Business Days prior to the earlier to occur of
(i) one year after the existence of such excess Additional Amounts is
established and (ii) the date the first payment in respect of any portion of
such excess Additional Amounts becomes due, such additional funds as are
necessary to satisfy the provisions of such subsection (a) as if a defeasance
were being effected as of the date of such subsequent deposit. For purposes of
this paragraph, the existence of excess Additional Amounts shall be deemed to
have been established as of the date the governmental authority imposing the
tax, duty, assessment or other governmental charge resulting in the Additional
Amounts first publishes the legislation, regulation or other enactment adopting
such tax, duty, assessment or other governmental charge. Failure to comply
with the requirements of this paragraph shall result in the termination of the
benefits of the defeasance established by this Section 1010 with respect to the
Securities of such series.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
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SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at
the option of the Company of Securities of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless all
Securities of such series then Outstanding are held by an American General LLC,
in which event, at least one Business Day prior to such Redemption Date and, in
any case, unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities
of such series to be redeemed. In the case of any redemption of Securities (i)
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, or (ii) pursuant to an
election of the Company which is subject to a condition specified in the terms
of such Securities, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction or condition.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series with the same terms are
to be redeemed, the particular Securities to be redeemed shall be selected by
the Trustee, not more than 60 days prior to the Redemption Date (unless all
Securities of such series then outstanding are held by an American General
LLC), from the Outstanding Securities of such series having such terms not
previously called for redemption, by such method as the Trustee shall deem fair
and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum authorized
denomination for Securities of that series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any 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 Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in Section
106, not less than 30 nor more than 60 days prior to the Redemption Date,
unless a shorter period is specified in Section 1108 or in the Securities to
be redeemed or unless all Securities to be redeemed are held by an American
General LLC, in which event, such notice shall, except as provided in Section
1108, be given at least one Business Day prior to such Redemption Date, to each
Holder of Securities to be redeemed. Failure to give such notice by mailing in
the manner therein provided to the Holder of any Security designated for
redemption as a whole
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or in part, or any defect in the notice to any such Holder, shall not affect
the validity of the proceedings for the redemption of any other such Security
or portion thereof.
Any notice that is given in the manner provided in Section 106 shall
be conclusively presumed to have been duly given, whether or not the Holder of
Securities receives the notice.
All notices of redemption shall state, to the extent applicable:
(a) the Redemption Date;
(b) the Redemption Price and accrued interest
(including Additional Interest), if any;
(c) if less than all Outstanding Securities of any
series having the same terms are to be redeemed, the identification
(and, in the case of partial redemption, the principal amount) of the
particular Security or Securities to be redeemed;
(d) in case any Security is to be redeemed in part
only, the notice which relates to such Security shall state that on
and after the Redemption Date, upon surrender of such Security, the
Holder of such Security will receive, without charge, a new Security
or Securities of authorized denominations for the principal amount
thereof remaining unredeemed;
(e) that on the Redemption Date the Redemption Price
and any accrued interest (including any Additional Interest) shall
become due and payable upon each such Security or portion thereof to
be redeemed and, if applicable, that interest thereon shall cease to
accrue on and after said date;
(f) the current conversion price of the Securities to
be redeemed and that on the third Business Day preceding the
Redemption Date any right to convert the particular Securities to be
redeemed shall terminate;
(g) the place or places where such Securities are to
be surrendered for payment of the Redemption Price and any accrued
interest (including any Additional Interest) pertaining thereto;
(h) that the redemption is for a sinking fund, if
such is the case; and
(i) the CUSIP number (or any other numbers used by a
Depository to identify such Securities), if any, of the Securities to
be redeemed.
Notice of redemption of 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 in the name and at the expense of the Company.
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SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, except in the case of a sinking fund payment under Article Twelve,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay on the Redemption Date the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date) any accrued interest
(including any Additional Interest) on all the Securities or portions thereof
which are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
If notice of redemption has been given as provided in Section 1104
(unless such notice is not required pursuant to such Section or Section 1108),
the Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, together with any accrued
interest (including any Additional Interest) thereon, and from and after such
date (unless the Company shall default in the payment of the Redemption Price
or any accrued interest (including any Additional Interest)) such Securities
shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with any accrued interest (and any
Additional Interest) to the Redemption Date; provided, however, that
installments of interest on Securities whose Stated Maturity is on or prior to
the Redemption Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close of business on
the relevant Regular Record Dates or Special Record Dates, as the case may be,
according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal, any premium and, to the extent
permitted by applicable law, the interest required to be paid shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered
at any office or agency of the Company maintained for that purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of the same series containing identical terms and
provisions, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered. If a Security in global form
is so surrendered, the Company shall execute, and the Trustee shall
authenticate and deliver to the Depository for such Security, without service
charge, a new
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Security in global form in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Security in global form so
surrendered.
SECTION 1108. PERMITTED VARIATIONS.
If an American General LLC is the Holder of all the Securities of a
particular series, then, in lieu of the provisions set forth in Section 1102,
1103 and 1104, the Company and such Holder may establish such alternative
provisions with respect to such series of Securities as the Company and the
Holder may agree and the Trustee may determine to be acceptable. Additionally,
if a series of Securities is subject to mandatory redemption by reason of the
redemption or pre-payment of the series of Preferred Securities related to such
series of Securities, then no redemption notice need be mailed pursuant to this
Article to the Holder or Holders of such series of Securities.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of such series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company may, in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of a series required to be made
pursuant to the terms of such Securities (i) deliver Outstanding Securities of
such series (other than any of such Securities previously called for
redemption), and (ii) apply as a credit Securities of such series which have
been redeemed either at the election of the Company pursuant to the terms of
such Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, as provided for by the terms
of such Securities; provided that such Securities so delivered or applied as a
credit have not been previously so credited. Such Securities shall be received
and credited for such purpose by the Trustee at the applicable Redemption Price
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specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities (or such shorter notice as the Trustee may approve), the
Company will deliver to the Trustee 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 and the portion thereof, if any, which is to be
satisfied by delivering or crediting Securities of that series pursuant to
Section 1202, the basis for any such crediting, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment,
and will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days before each such sinking fund payment date the Trustee
shall, subject to Section 1108, select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 1103 and, subject
to Section 1108, 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 1104.
Such notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
SUBORDINATION
SECTION 1301. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of a Security, by
his acceptance thereof, likewise covenants and agrees, that, to the extent and
in the manner hereinafter set forth in this Article, the payment of the
principal of, premium, if any, and interest (including all Additional Interest)
on each and all of the Securities are hereby expressly made subordinate and
subject in right of payment to the prior payment in full in cash of all Senior
Indebtedness.
SECTION 1302. PAYMENT OF PROCEEDS UPON DISSOLUTION, ETC.
Upon any payment or distribution of assets of the Company to creditors
upon any liquidation, dissolution, winding-up, reorganization, assignment for
the benefit of creditors, marshalling of assets or liabilities or any
bankruptcy, insolvency or similar proceedings of the Company (each such event,
if any, herein sometimes referred to as a "Proceeding"):
(a) the holders of Senior Indebtedness shall be
entitled to receive payment in full in cash of all amounts due on or
to become due on or in respect of all
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Senior Indebtedness (including any interest accruing thereon after the
commencement of any such Proceeding, whether or not allowed as a claim
against the Company in such Proceeding), before the Holders of the
Securities are entitled to receive any payment or distribution
(excluding any payment described in the last paragraph of this Section
1302 or any payment described in Section 1309), on account of the
principal of, premium, if any, or interest (including any Additional
Interest) on the Securities or on account of any purchase, redemption
or other acquisition of Securities by the Company or any Subsidiary of
the Company (all such payments, distributions, purchases, redemptions
and acquisitions, whether or not in connection with a Proceeding,
herein referred to, individually and collectively, as a "Securities
Payment"); and
(b) any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or
securities, by set-off or otherwise, to which the Holders of the
Securities or the Trustee would be entitled but for the provisions of
this Article shall be paid by the liquidating trustee or agent or
other Person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly
to the holders of Senior Indebtedness or the Designated Senior
Holders, ratably according to the aggregate amounts remaining unpaid
on account of the Senior Indebtedness held or represented by each, to
the extent necessary to make payment in full in cash of all Senior
Indebtedness remaining unpaid, after giving effect to any concurrent
payment or distribution to the holders of such Senior Indebtedness.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received in
connection with any Proceeding any Securities Payment before all Senior
Indebtedness is paid in full or payment thereof is provided for in cash, then
and in such event such Securities Payment shall be paid over or delivered
forthwith to the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other Person making payment or distribution of
assets of 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 cash after giving effect to any concurrent payment to or for the
holders of Senior Indebtedness.
For purposes of this Article only, the words "payment or distribution"
or "any payment or distribution of any kind or character, whether in cash,
property or securities" shall not be deemed to include a payment or
distribution of stock or securities of the Company provided for by a plan of
reorganization or readjustment authorized by an order or decree of a court of
competent jurisdiction in a reorganization proceeding under any applicable
bankruptcy law or of any other corporation provided for by such plan of
reorganization or readjustment, which stock or securities are subordinated in
right of payment to all then outstanding Senior Indebtedness to substantially
the same extent, or to a greater extent than, the Securities are so
subordinated as provided in this Article. The consolidation of the Company
with, or the merger of the Company into, another Person or the liquidation or
dissolution of the Company following the conveyance, transfer or lease of all
or substantially all of its properties and assets to another Person upon the
terms and conditions set forth in Article Eight shall not be deemed
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a Proceeding for the purposes of this Section if the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance, transfer or lease such properties and assets, as the case may
be, shall, as a part of such consolidation, merger, conveyance, transfer or
lease, comply with the conditions set forth in Article Eight.
SECTION 1303. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.
In the event that any Senior Payment Default (as defined below) shall
have occurred and be continuing, then no Securities Payment shall be made,
unless and until such Senior Payment Default shall have been cured or waived in
writing or shall have ceased to exist or all amounts then due and payable in
respect of such Senior Indebtedness (including, without limitation, amounts
that have become and remain due by acceleration) shall have been paid in full
in cash. "Senior Payment Default" means any default in the payment of the
principal of, premium, if any, or interest on any Senior Indebtedness when due,
whether at the stated maturity of any such payment or by declaration of
acceleration, call for redemption, notice of the exercise of an option to
require such repayment, mandatory payment or prepayment or otherwise.
In the event that any Senior Nonmonetary Default (as defined below)
shall have occurred and be continuing, then, upon the receipt by the Company or
the Trustee of written notice of such Senior Nonmonetary Default from any
holder or the Designated Senior Holder of the Senior Indebtedness to which such
Senior Nonmonetary Default relates, no Securities Payment shall be made during
the period (the "Payment Blockage Period") commencing on the date of such
receipt by the Company or the Trustee of such written notice and ending on the
earlier of (i) the date, if any, on which the Senior Indebtedness to which such
Senior Nonmonetary Default relates is discharged or such Senior Nonmonetary
Default shall have been cured or waived in writing or shall have ceased to
exist and any acceleration of Senior Indebtedness to which such Senior
Nonmonetary Default relates shall have been rescinded or annulled and (ii) the
179th day after the date of such receipt of such written notice. No more than
one Payment Blockage Period may be commenced with respect to the Securities
during any period of 360 consecutive days and there shall be a period of at
least 181 consecutive days in each period of 360 consecutive days when no
Payment Blockage Period is in effect. Following the commencement of any
Payment Blockage Period, the holders of Senior Indebtedness shall be precluded
from commencing a subsequent Payment Blockage Period until the conditions set
forth in the preceding sentence shall have been satisfied. For all purposes of
this paragraph, no Senior Nonmonetary Default that existed or was continuing on
the date of commencement of any Payment Blockage Period with respect to the
Senior Indebtedness initiating such Payment Blockage Period shall be, or may be
made, the basis for the commencement of a subsequent Payment Blockage Period by
any holder of Senior Indebtedness or a Designated Senior Holder unless such
Senior Nonmonetary Default shall have been cured for a period of not less than
90 consecutive days. "Senior Nonmonetary Default" means any default (other
than a Senior Payment Default) or any event (other than a Senior Payment
Default) which, after notice or lapse of time (or both), would become an event
of default, under the terms of any instrument or agreement pursuant to which
any Senior Indebtedness is outstanding, permitting one or more holders of such
Senior Indebtedness or a
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Designated Senior Holder to declare such Senior Indebtedness due and payable
prior to the date on which it would otherwise become due and payable.
In the event that, notwithstanding the foregoing, the Company shall
make any Securities Payment to the Trustee or any Holder prohibited by the
foregoing provisions of this Section, then in such event such Securities
Payment shall be held in trust and paid over and delivered forthwith to the
Designated Senior Holders under the Senior Indebtedness or, if there is no
Designated Senior Holder with respect to such Senior Indebtedness, to the
holders of such Senior Indebtedness.
The provisions of this Section shall not apply to any Securities
Payment with respect to which Section 1302 hereof would be applicable.
SECTION 1304. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent the Company, at any time except during the
pendency of any Proceeding referred to in Section 1302 hereof or under the
conditions described in Section 1303 hereof, from making Securities Payments.
Nothing in this Article shall have any effect on the right of the Holders or
the Trustee to accelerate the maturity of the Securities upon the occurrence of
an Event of Default, but, in that event, no payment may be made in violation of
the provisions of this Article with respect to the Securities. If payment of
the Securities is accelerated because of an Event of Default, the Company shall
promptly notify the holders of the Senior Indebtedness (or their
representatives) of such acceleration.
SECTION 1305. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full in cash of all Senior Indebtedness, the
Holders of the Securities shall be subrogated to the rights of the holders of
such Senior Indebtedness to receive payments and distributions of cash,
property and securities applicable to the Senior Indebtedness until the
principal of, premium, if any, and interest (including Additional Interest) on
the Securities shall be paid in full. For 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, and no
payments pursuant to the provisions of this Article to the holders of Senior
Indebtedness by Holders of the Securities or the Trustee, shall, as among the
Company, its creditors other than holders of Senior Indebtedness and the
Holders of the Securities, be deemed to be a payment or distribution by the
Company to or on account of the Senior Indebtedness.
SECTION 1306. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders on the one hand and the
holders of Senior Indebtedness on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the
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Securities is intended to or shall (a) impair, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional
(and which, subject to the rights under this Article of the holders of Senior
Indebtedness, is intended to rank equally with all other general obligations of
the Company), to pay to the Holders of the Securities the principal of,
premium, if any, and interest (including Additional Interest) on the Securities
as and when the same shall become due and payable in accordance with their
terms; or (b) affect the relative rights against the Company of the Holders of
the Securities and creditors of the Company other than the holders of Senior
Indebtedness; or (c) 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 of the
holders of Senior Indebtedness to receive cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder or, under the
conditions specified in Section 1303, to prevent any payment prohibited by such
Section or enforce their rights pursuant to the penultimate paragraph in
Section 1303.
SECTION 1307. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes,
including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Company, whether in bankruptcy, insolvency, receivership
proceedings, or otherwise, the timely filing of a claim for the unpaid balance
of the indebtedness of the Company owing to such Holder in the form required in
such proceedings and the causing of such claim to be approved. If the Trustee
does not file a proper claim at least 30 days before the expiration of the time
to file such claim, then the holders of the Senior Indebtedness and their
agents, trustees or other representatives are authorized to do so (but shall in
no event be liable for any failure to do so) for and on behalf of the Holders
of the Securities.
SECTION 1308. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Indebtedness to
enforce the subordination provisions provided herein shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of the
Company or by any act or failure to act, in good faith, by any such holder, or
by any noncompliance by the Company with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof any such holder may have or
be otherwise 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
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amend or supplement in any manner Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness is
outstanding; (ii) permit the Company to borrow, repay and then reborrow any or
all of the Senior Indebtedness; (iii) sell, exchange, release or otherwise deal
with any property pledged, mortgaged or otherwise securing Senior Indebtedness;
(iv) release any Person liable in any manner for the collection of Senior
Indebtedness; (v) exercise or refrain from exercising any rights against the
Company and any other Person; and (vi) apply any sums received by them to
Senior Indebtedness.
SECTION 1309. TRUST MONEYS NOT SUBORDINATED.
Notwithstanding anything contained herein to the contrary, payments
from money or the proceeds of Government Obligations held in trust by the
Trustee under Article Four, under Section 1010, or under a supplemental
indenture containing the provisions described in Section 901(i) for the payment
of the principal of, premium, if any, and interest (including Additional
Interest) on any series of Securities shall not be subordinated to the prior
payment of any Senior Indebtedness or subject to the restrictions set forth in
this Article, and no Holder of such Securities nor the Trustee shall be
obligated to pay over any such amount to the Company, any holder of Senior
Indebtedness, any Designated Senior Holder or any other creditor of the
Company.
SECTION 1310. NOTICE TO TRUSTEE.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company that would prohibit the making of any payment to or
by the Trustee in respect of the Securities or that would end such prohibition.
Notwithstanding the provisions of this Article or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts that which would prohibit the making of any payment to or by the
Trustee in respect of the Securities or that would end such prohibition, unless
and until a Responsible Officer of the Trustee assigned to its Corporate
Trustee Administration Department (or in the absence of such a department, any
Responsible Officer of the Trustee) shall have received written notice thereof
from the Company, any holder of Senior Indebtedness or any Designated Senior
Holder; and, prior to the receipt of any such written notice, the Trustee,
subject to the provisions of Section 601 hereof, shall be entitled in all
respects to assume that no such facts exist; provided, however, that, if prior
to the close of business on the Business Day immediately preceding the date
upon which by the terms hereof any monies become payable hereunder (including,
without limitation, the payment of either the principal of, premium, if any, or
interest on a Security), the Trustee or any Paying Agent shall not have
received with respect to such monies the notice provided for in this Section
1310, then, anything herein contained to the contrary notwithstanding, the
Trustee or such Paying Agent shall have full power and authority to receive
such monies and apply the same to the purpose for which they were received on
the date payment is due and, unless such payment is not made on that date,
shall not be affected by any notice to the contrary which may be received by it
on or after the date upon which such monies become due and payable. Any notice
required or permitted to be given to the Trustee by the Company, a holder of
Senior Indebtedness or any Designated Senior Holder shall be in writing and
shall be sufficient for every purpose
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hereunder if in writing and either (i) sent via facsimile to the Trustee to a
facsimile number provided by the Trustee, the receipt of which shall be
confirmed via telephone, or (ii) mailed, first class postage prepaid, or sent
by overnight carrier, to the Trustee addressed to it, attention of its
Corporate Trustee Administration Department, at the address of its principal
corporate trust office specified in the first paragraph of this Indenture or at
any other address furnished in writing to the Company, such holder of Senior
Indebtedness, or such Designated Senior Holder.
Subject to the provisions of Section 601 hereof, the Trustee 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 Designated Senior
Holder to establish that such notice has been given by such holder of Senior
Indebtedness or Designated Senior Holder. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person representing himself to be a holder of Senior Indebtedness
or Designated Senior Holder to participate in any payment or distribution
pursuant to this Article, 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, or 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 1311. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 601 hereof,
and the Holders of the Securities shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which such Proceeding
is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or
to the Holders of Securities, for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of the
Senior Indebtedness, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article, provided that the foregoing shall apply only if such court has
been apprised of the provisions of this Article.
SECTION 1312. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS.
Subject to the provisions of Section 601, the Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness and
shall not be liable to any such holders if it shall in good faith mistakenly
pay over or distribute to Holders of Securities or to the Company or to any
other Person cash, property or securities to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article or otherwise.
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SECTION 1313. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be 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 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607 hereof.
SECTION 1314. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee (or the
Company or an Affiliate of the Company) shall have been appointed by the
Company and be then acting hereunder, the term "Trustee" as used in this
Article shall in such case (unless the context otherwise requires) be construed
as extending to and including such Paying Agent within its meaning as fully for
all intents and purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee.
SECTION 1315. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON
SUBORDINATION PROVISIONS.
Each Holder by accepting a Security acknowledges and agrees that the
foregoing subordination provisions are, and are intended to be, an inducement
and a consideration to each holder of any Senior Indebtedness, whether such
Senior Indebtedness was created or acquired before or after the issuance of the
Securities, to acquire and continue to hold, or to continue to hold, such
Senior Indebtedness and such holder of Senior Indebtedness shall be deemed
conclusively to have relied on such subordination provisions in acquiring and
continuing to hold, or in continuing to hold, such Senior Indebtedness.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. APPLICABILITY OF ARTICLE.
If a supplemental indenture, Board Resolution or other instrument
authorizing a series of Securities pursuant to Section 301 provides that a
meeting of Holders of Securities of such series shall be called pursuant to
this Article to make, give or take any request, demand, authorization,
direction, notice, consent, approval, waiver or other action specified in such
supplemental indenture, Board Resolution or other instrument, then the
provisions of this Article shall be applicable except as otherwise specified in
such supplemental indenture, Board Resolution or other instrument.
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SECTION 1402. CALL, NOTICE AND PLACE OF MEETINGS.
(a) If a supplemental indenture, Board Resolution or other
instrument authorizing a series of Securities provides that the Trustee shall
call a meeting of the Holders of such Securities, then, upon the satisfaction
of any notice requirements or other conditions specified in such supplemental
indenture, Board Resolution or other instrument, the Trustee shall call a
meeting of Holders of Securities of such series for the purpose specified in
such supplemental indenture, Board Resolution or other instrument, to be held
at such time and at such place in the Borough of Manhattan, The City of New
York, or in such other place within the United States as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 10 nor more than 180 days prior to the
date fixed for the meeting.
(b) If the Trustee shall not have mailed the notice of such
meeting within 14 days after the date specified in such supplemental indenture,
Board Resolution or other instrument or shall not thereafter proceed to cause
the meeting to be held, then the Company or the Holders of at least 10% in
aggregate principal amount of the Outstanding Securities of such series, as the
case may be, may determine the time and the place in the Borough of Manhattan,
The City of New York, for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in subsection (a) of this
Section.
SECTION 1403. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (i) a Holder of one or more Outstanding Securities of
such series, or (ii) a Person appointed by an instrument in writing as proxy
for a Holder or Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders of Securities of any series shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 1404. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series; provided, however, that if any
action is to be taken at such meeting which the supplemental indenture, Board
Resolution or other instrument authorizing such series of Securities expressly
provides may be given by the Holders of not less than 66 2/3%, or a greater
percentage, in aggregate principal amount of the Outstanding Securities of such
series, then with respect to such action (and only such action), the Persons
entitled to vote 66 2/3%, or such greater percentage, in aggregate principal
amount of the Outstanding Securities of such series shall constitute a quorum.
In the absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10
days as determined by the chairman
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of the meeting prior to the adjournment of such adjourned meeting. Notice of
the reconvening of any adjourned meeting shall be given as provided in Section
1402(a), except that such notice shall be given not less than five days prior
to the date on which the meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Securities of such
series which shall constitute a quorum with respect to each action to be
considered at such meeting.
Any resolution presented to a meeting duly convened or an adjourned
meeting duly reconvened at which a quorum is present may be adopted only by the
affirmative vote of the Holders of the percentage in aggregate principal amount
of the Outstanding Securities of the applicable series specified in the
supplemental indenture, Board Resolution or other instrument authorizing such
series or herein as being required to take such action.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series, whether or not present
or represented at the meeting.
SECTION 1405. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETINGS.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of any series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1402(b), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each amount of the principal of
Outstanding Securities of such series held or represented by him equal to the
minimum authorized denomination of Securities of such series; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1402 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of such
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series represented at the meeting; and the meeting may be held as so adjourned
without further notice.
SECTION 1406. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1402 and, if
applicable, Section 1404. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 1501. NO RECOURSE AGAINST OTHERS.
An incorporator or any past, present or future director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or this Indenture or
for any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Holder shall waive and release all
such liability. Such waiver and release shall be part of the consideration for
the issue of the Securities.
SECTION 1502. SET-OFF.
Notwithstanding anything to the contrary in this Indenture or in any
Security of any series, prior to a Special Event Exchange with respect to a
series of Preferred Securities, the Company shall have the right to set-off and
apply against any payment it is otherwise required to make hereunder or
thereunder with respect to the principal of, premium, if any, or interest
(including any Additional Interest) on the Securities of such series with and
to the extent the Company has theretofore made, or is concurrently on the date
of such payment making, a payment with respect to the Preferred Securities of
the series related to such series of Securities under the applicable Guarantee
to provide funds to the applicable American General LLC to
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pay dividends on, or the redemption price or liquidation preference of, such
series of Preferred Securities. Contemporaneously with, or as promptly as
practicable after, any such payment under such Guarantee to pay dividends on,
or the redemption price or the liquidation preference of, a series of Preferred
Securities, the Company shall deliver to the Trustee an Officers' Certificate
(upon which the Trustee shall be entitled to rely conclusively without any
requirement to investigate the facts contained therein) to the effect that such
payment has been made and that, as a result of such payment, the corresponding
payment under the related series of Securities has been set-off in accordance
with this Section 1502.
SECTION 1503. ASSIGNMENT; BINDING EFFECT.
The Company shall have the right at all times to assign any of its
rights or obligations under this Indenture to a direct or indirect wholly-owned
Subsidiary of the Company, provided that, in the event of any such assignment,
the Company shall remain primarily liable for the performance of all such
obligations. This Indenture may also be assigned by the Company in connection
with a transaction described in Article Eight. This Indenture shall be binding
upon and inure to the benefit of the Company, the Trustee, the Holders, any
Security Registrar, Paying Agent, and Authenticating Agent and, to the extent
specifically set forth herein, the holders of Senior Indebtedness and their
respective successors and assigns. The provisions of Section 903(a) (to the
extent relating to Preferred Securities), Section 1006 and Section 1007 are for
the benefit of the holders of the series of Preferred Securities referred to
therein and, prior to a Special Event Exchange with respect to such series, may
be enforced by such holders. A holder of a Preferred Security shall not have
the right, as such a holder, to enforce any other provision of this Indenture.
SECTION 1504. ADDITIONAL INTEREST.
Whenever there is mentioned in this Indenture, in any context, the
payment of the principal of, premium, if any, or interest on, or in respect of,
any Security of any series, such mention shall be deemed to include mention of
the payment of Additional Interest provided for by the terms of such series of
Securities to the extent that, in such context, Additional Interest is, were or
would be payable in respect thereof pursuant to such terms and express mention
of the payment of Additional Interest in any provisions hereof shall not be
construed as excluding Additional Interest in those provisions hereof where
such express mention is not made.
* * * * *
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.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
AMERICAN GENERAL CORPORATION
[CORPORATE SEAL]
By: __________________________________
By: __________________________________
Attest:
_____________________________
CHEMICAL BANK
[CORPORATE SEAL]
By: __________________________________
__________________________________
Attest:
_____________________________
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STATE OF TEXAS: )
)
COUNTY OF HARRIS: )
On the ____ day of ________________, 1995, before me
personally came _______________, to me known, who, being by me duly sworn, did
depose and say that he is _________________________________________________ of
AMERICAN GENERAL CORPORATION, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
________________________________________
Notary Public
STATE OF TEXAS: )
)
COUNTY OF HARRIS: )
On the ____ day of ________________, 1995, before me
personally came ________________, to me known, who, being by me duly sworn, did
depose and say that he is ____________________________ of AMERICAN GENERAL
CORPORATION, one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
________________________________________
Notary Public
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STATE OF NEW YORK: )
)
COUNTY OF NEW YORK: )
On the _____ day of _________________, 1995, before me
personally came _________________________, to me known, who, being by me duly
sworn, did depose and say that he resides at ___________________,
_________________; that he is a _______________________ of Chemical Bank, one
of the corporations described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
________________________________________
Notary Public
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