<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 21, 1997
REGISTRATION NO. 333-13713
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------
<TABLE>
<S> <C>
AMERUS CAPITAL I AMERUS LIFE HOLDINGS, INC.
(Exact name of Registrant as specified in its (Exact name of Registrant as specified in its
charter) charter)
DELAWARE IOWA
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
42-6559006 42-1459712
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
6719 6719
(Primary Standard Industrial (Primary Standard Industrial
Classification Code Number) Classification Code Number)
418 SIXTH AVENUE 418 SIXTH AVENUE
DES MOINES, IOWA 50309-2407 DES MOINES, IOWA 50309-2407
(515) 280-1331 (515) 280-1331
(Address, including zip code, and telephone number, (Address, including zip code, and telephone number,
including area code, of Registrant's principal including area code, of Registrant's principal
executive offices) executive offices)
</TABLE>
JAMES A. SMALLENBERGER
SENIOR VICE PRESIDENT AND SECRETARY
AMERUS LIFE HOLDINGS, INC.
418 SIXTH AVENUE
DES MOINES, IOWA 50309-2407
(515) 280-1331
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------------
Copies to:
<TABLE>
<S> <C>
RICHARD G. CLEMENS, ESQ. WILLIAM D. TORCHIANA, ESQ.
SIDLEY & AUSTIN SULLIVAN & CROMWELL
ONE FIRST NATIONAL PLAZA 125 BROAD STREET
CHICAGO, ILLINOIS 60603 NEW YORK, NEW YORK 10004
(312) 853-7000 (212) 558-4000
</TABLE>
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the Registration Statement becomes effective.
----------------
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
----------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) EXHIBITS:
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
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<S> <C>
*1.1 Form of Underwriting Agreement between the Issuer, ALH and AmerUs Life on the one hand, and the
Representatives of the Underwriters, on behalf of the Underwriters, on the other hand.
2.1 Plan of Reorganization dated October 27, 1995 (incorporated by reference to ALH's Registration
Statement on Form S-1 filed on September 18, 1996 (SEC file number 333-12239) (the "Common Stock
Offering")
3.1 Articles of Incorporation of ALH (incorporated by reference to the Common Stock Offering)
3.2 Bylaws of ALH (incorporated by reference to the Common Stock Offering)
3.3 Amended and Restated Articles of Incorporation of ALH (as approved by the Iowa Insurance
Commissioner) (incorporated by reference to Amendment No. 3 to the Common Stock Offering filed on
December 12, 1996 ("Common Amendment No. 3") Exhibit No. 3.5)
3.4 Certificate of Trust of the Issuer
3.5 Trust Agreement
*3.6 Form of Amended and Restated Trust Agreement (as revised)
*4.1 Form of Indenture between ALH and Wilmington Trust Company, as Indenture Trustee (as revised)
*4.2 Form of Capital Security (included in Exhibit 3.6)
*4.3 Form of Junior Subordinated Debenture (included in Exhibit 3.6)
*4.4 Form of Guarantee Agreement between ALH and Wilmington Trust Company, as Guarantee Trustee (as
revised)
5.1 Opinion of James A. Smallenberger, Esq.
5.2 Opinion of Richards, Layton & Finger
5.3 Opinion of James A. Smallenberger dated January 21, 1997
5.4 Opinion of Richards, Layton & Finger dated January 21, 1997
8.1 Opinion of Sidley & Austin re: certain Tax Matters dated December 19, 1996
*8.2 Opinion of Sidley & Austin re: certain Tax Matters dated January 21, 1997
10.1 Amended and Restated Intercompany Agreement dated as of December 1, 1996, among American Mutual
Holding Company, AmerUs Group Co. and ALH (incorporated by reference to Common Amendment No. 3
Exhibit 10.81)
10.2 Joint Venture Agreement, dated as of March 8, 1996, between American Mutual Insurance Company and
Ameritas Life Insurance Corp., and First Amendment thereto dated as of April 1, 1996 between
American Mutual Insurance Company and Ameritas Life Insurance Corp. (incorporated by reference to
Amendment No. 1 to the Common Stock Offering filed on November 7, 1996 ("Common Amendment No. 1"))
10.3 Management and Administrative Service Agreement, dated as of April 1, 1996, among American Mutual
Life Insurance Company, Ameritas Variable Life Insurance Company and Ameritas Life Insurance Corp.
(incorporated by reference to Common Amendment No. 1)
10.4 Agreement and Plan of Merger, dated as of August 24, 1994, among Central Life Assurance Company and
American Mutual Life Insurance Company (incorporated by reference to Common Stock Offering)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
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<S> <C>
10.5 Line of Credit Application and Approval, dated February 28, 1996 and April 22, 1996, respectively,
between American Mutual Life Insurance Company and Federal Home Loan Bank of Des Moines
(incorporated by reference to Common Stock Offering)
10.6 All*AmerUs Supplemental Executive Retirement Plan, effective January 1, 1996 (incorporated by
reference to Common Stock Offering)
10.7 American Mutual Life Insurance Company Supplemental Pension Plan (which was curtailed as of December
31, 1995) (incorporated by reference to Common Stock Offering)
10.8 Central Life Assurance Company Supplemental Pension Plan (which was curtailed as of December 31,
1995) (incorporated by reference to the paper-only filing of Common Amendment No. 1 ("Paper
Filing"))
10.9 Management Incentive Plan (incorporated by reference to Paper Filing)
10.10 AmerUs Life Insurance Company Performance Share Plan (incorporated by reference to Paper Filing)
10.11 AmerUs Life Stock Incentive Plan (incorporated by reference to Common Stock Offering)
10.12 Employment Agreement, dated February 1, 1995, between American Mutual Life Insurance Company and Sam
C. Kalainov (incorporated by reference to Common Stock Offering)
10.13 AmerUs Life Non-Employee Director Stock Plan (incorporated by reference to Common Stock Offering)
10.14 Modification of Real Estate Contract, dated as of July 1, 1996, between AmerUs Life Insurance Company
and AmerUs Properties, Inc. (incorporated by reference to Common Stock Offering)
10.15 Asset Management and Disposition Agreement, dated January 3, 1995, between American Mutual Life
Insurance Company and Central Properties, Inc. (now AmerUs Properties, Inc.) (incorporated by
reference to Common Stock Offering)
10.16 Management Contract, dated January 1, 1993, between Central Life Assurance Company and Central
Properties, Inc. (now AmerUs Properties, Inc.) (incorporated by reference to Common Amendment No. 1)
10.17 Management Contract, dated November 1, 1994, between American Mutual Life Insurance Company and CPI
Resource Group (now AmerUs Group Co.) (incorporated by reference to Common Stock Offering)
10.18 Management Contract, dated January 1, 1993, between Central Life Assurance Company and Central
Properties, Inc. (now AmerUs Properties, Inc.) (incorporated by reference to Common Stock Offering)
10.19 Management Contract, dated January 1, 1995, between American Mutual Life Insurance Company and
Central Properties, Inc. (now AmerUs Properties, Inc.) (incorporated by reference to Common Stock
Offering)
10.20 Management Contract, dated July 1, 1994, between Central Life Assurance Company and CPI Resource
Group (now AmerUs Group Co.) (incorporated by reference to Common Stock Offering)
10.21 Management Contract, dated February 1, 1994, between Central Life Assurance Company and Central
Properties, Inc. (now AmerUs Properties, Inc.) (incorporated by reference to Paper Filing)
10.22 Management Contract, dated May 1, 1994, between Central Life Assurance Company and Central
Properties, Inc. (now AmerUs Properties, Inc. ) (incorporated by reference to Common Stock Offering)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
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<S> <C>
10.23 Management Contract, dated February 1, 1994, between Central Life Assurance Company and Central
Properties, Inc. (now AmerUs Properties, Inc. ) (incorporated by reference to Common Stock Offering)
10.24 Management Contract, dated January 4, 1994, between Central Life Assurance Company and CPI Resource
Group (now AmerUs Group Co.) (incorporated by reference to Common Stock Offering)
10.25 Management Contract, dated November 1, 1994, between American Mutual Life Insurance Company and CPI
Resource Group (now AmerUs Group Co.) (incorporated by reference to Common Stock Offering)
10.26 Lease - Business Property, dated December 1, 1995, between American Mutual Life Insurance Company and
AmerUs Leasing (incorporated by reference to Common Stock Offering)
10.27 Lease - Business Property, dated January 1, 1996, between American Mutual Life Insurance Company and
AmerUs Bank (incorporated by reference to Common Stock Offering)
10.28 Lease - Business Property, dated January 1, 1996, between American Mutual Life Insurance Company and
AmerUs Bank (incorporated by reference to Common Stock Offering)
10.29 Lease - Business Property, dated January 1, 1996, between American Mutual Life Insurance Company and
AmerUs Bank (incorporated by reference to Common Stock Offering)
10.30 Lease - Business Property, dated January 1, 1996, between American Mutual Life Insurance Company and
AmerUs Group (incorporated by reference to Common Stock Offering)
10.31 Lease - Business Property, dated January 1, 1996, between American Mutual Life Insurance Company and
AmerUs Group (incorporated by reference to Common Stock Offering)
10.32 Assumption and Amendment of Lease Agreement, dated as of November 27, 1993 among Central Life
Assurance Company, Midland Savings Bank FSB (now AmerUs Bank) and Midland Financial Mortgages, Inc.
(now AmerUs Mortgage, Inc.) (incorporated by reference to Paper Filing)
10.33 Form of Indemnification Agreement executed with directors and certain officers (incorporated by
reference to Common Stock Offering)
10.34 Amended and Restated Agreement and Certificate of Limited Partnership of CPI Housing Partners I,
L.P., dated as of September 1, 1995, among AmerUs Properties, Inc., American Mutual Life Insurance
Company and American Mutual Affordable Housing Partners, L.P. (incorporated by reference to Paper
Filing)
10.35 Amended and Restated Agreement of Limited Partnership of American Mutual Affordable Housing Partners,
L.P., dated as of September 1, 1995, among GrA Partners Joint Venture, AmerUs Properties, Inc.,
American Mutual Life Insurance Company, NCC Polar Company and NCC Orion Company (incorporated by
reference to Common Amendment No. 1)
10.36 Amended and Restated Agreement and Certificate of Limited Partnership of 65th & Vista, L.P., dated as
of September 1, 1995, among AmerUs Properties, Inc., American Mutual Life Insurance Company and
American Mutual Affordable Housing Partners, L.P. (incorporated by reference to Paper Filing)
10.37 Amended and Restated Agreement and Certificate of Limited Partnership of 60th & Vista, L.P., dated as
of September 1, 1995, among I.R.F.B. Joint Venture, American Mutual Life Insurance Company and
American Mutual Affordable Housing Partners, L.P. (incorporated by reference to Paper Filing)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
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<S> <C>
10.38 Certificate of Limited Partnership and Limited Partnership Agreement of CPI Housing Partners II,
L.P., dated March 27, 1995, between Central Properties, Inc. (now AmerUs Properties, Inc.) and
American Mutual Life Insurance (incorporated by reference to Paper Filing) Company
10.39 Amended and Restated Agreement and Certificate of Limited Partnership of API Housing Partners III,
L.P., dated as of March 1, 1996, among AmerUs Properties, Inc., American Mutual Life Insurance
Company, American Mutual Affordable Housing Partners II, L.P. and AmerUs Management, (incorporated
by reference to Paper Filing) Inc.
10.40 Certificate of Limited Partnership and Limited Partnership Agreement of API Housing Partners IV,
L.P., dated as of June, 1995, between AmerUs Properties, Inc. and American Mutual Life Insurance
Company (incorporated by reference to Paper Filing)
10.41 Amended and Restated Agreement and Certificate of Limited Partnership of API Housing Partners V,
L.P., dated as of March 1, 1996, among AmerUs Properties, Inc., American Mutual Life Insurance
Company, American Mutual Affordable Housing Partners II, L.P. and AmerUs Management, Inc.
(incorporated by reference to Paper Filing)
10.42 Amended and Restated Agreement and Certificate of Limited Partnership of API-Chimney Ridge Partners,
L.P., dated as of March 1, 1996, among AmerUs Properties, Inc., American Mutual Life Insurance
Company, American Mutual Affordable Housing Partners II, L.P. and AmerUs Management, Inc.
(incorporated by reference to Paper Filing)
10.43 Certificate of Limited Partnership and Limited Partnership Agreement of API Housing Partners VI,
L.P., dated as of October 10, 1995, between AmerUs Properties, Inc. and American Mutual Life
Insurance Company (incorporated by reference to Common Stock Offering)
10.44 Certificate of Limited Partnership and Limited Partnership Agreement of 86th & Meredith Associates,
L.P., dated as of February 14, 1995, between Central Properties, Inc. (now AmerUs Properties, Inc.)
and American Mutual Life Insurance Company (incorporated by reference to Paper Filing)
10.45 Certificate of Limited Partnership and Limited Partnership Agreement of Altoona Meadows Investors,
L.P., dated as of February 22, 1995, between KPI Investments, Inc. and Dennis Galeazzi (incorporated
by reference to Common Stock Offering)
10.46 First Amendment to the Certificate of Limited Partnership and Limited Partnership Agreement of
Altoona Meadows Investors, L.P., dated as of September 28, 1995, between KPI Investments, Inc. and
American Mutual Life Insurance Company (incorporated by reference to Common Stock Offering)
10.47 Loan Servicing Agreement, dated August 1, 1990, between Central Life Assurance Company and Midland
Financial Mortgages, Inc. (now AmerUs Mortgage), incorporated by reference to Exhibit 10.30 to
Central Resource Group, Inc.'s Registration Statement on Form S-1, Registration No. 33-48359, filed
on June 4, 1992
10.48 Construction Loan Servicing Agreement, dated November 20, 1995, between American Mutual Life
Insurance Company and AmerUs Properties, Inc. (incorporated by reference to Common Stock Offering)
10.49 Servicing Agreement, dated March 1996, between American Mutual Life Insurance Company and AmerUs
Properties, Inc. (incorporated by reference to Paper Filing)
10.50 Loan Servicing Agreement, dated September 1, 1994, between Central Life Assurance Company and Midland
Savings Bank, FSB (now AmerUs Bank) (incorporated by reference to Common Stock Offering)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
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<S> <C>
10.51 Miscellaneous Services Agreement, dated as of January 1, 1996, among American Mutual Life Insurance
Company, AmerUs Group Co., AmerUs Bank, AmerUs Mortgage, Inc., Iowa Realty Company, Inc., Midland
Homes, Inc., Iowa Title Company, AmerUs Insurance, Inc., and AmerUs Finance Inc. (incorporated by
reference to Common Stock Offering)
10.52 Amendment to Service Agreement, dated as of May 1, 1996, between American Mutual Life Insurance
Company and AmerUs Bank (incorporated by reference to Common Stock Offering)
10.53 Data Processing Service Agreement, dated November 1, 1989, between Central Life Assurance Company and
Midland Financial Savings and Loan Association (now AmerUs Bank), incorporated by reference to
Exhibit 10.29 to Central Resource Group, Inc.'s Registration Statement on Form S-1, Registration No.
33-48359, filed on June 4, 1992
10.54 First Amendment to Data Processing Service Agreement, dated as of September 30, 1990, between Central
Life Assurance Company and Midland Savings Bank FSB (now AmerUs Bank) (incorporated by reference to
Common Stock Offering)
10.55 Second Amendment to Data Processing Service Agreement, dated as of May 1, 1991, between Central Life
Assurance Company and Midland Savings Bank FSB (now AmerUs Bank) (incorporated by reference to
Common Stock Offering)
10.56 Third Amendment to Data Processing Service Agreement, dated as of October 1, 1991, between Central
Life Assurance Company and Midland Savings Bank, FSB (now AmerUs Bank) (incorporated by reference to
Common Stock Offering)
10.57 Fourth Amendment to Data Processing Service Agreement, dated as of January 2, 1992, between Central
Life Assurance Company and Midland Savings Bank, FSB (now AmerUs Bank) (incorporated by reference to
Common Stock Offering)
10.58 Fifth Amendment to Data Processing Service Agreement, dated as of July 1, 1993, between Central Life
Assurance Company and Midland Savings Bank FSB (now AmerUs Bank) (incorporated by reference to
Common Stock Offering)
10.59 Sixth Amendment to Data Processing Service Agreement, dated as of September 1, 1995, between American
Mutual Insurance Company and AmerUs Bank (incorporated by reference to Common Stock Offering)
10.60 Seventh Amendment to Data Processing Service Agreement, dated as of January 1, 1996, between American
Mutual Life Insurance Company and AmerUs Bank (incorporated by reference to Common Stock Offering)
10.61 Data Processing Support Services Agreement, dated as of July 1, 1993, between Central Life Assurance
Company and Midland Savings Bank, FSB (now AmerUs Bank) (incorporated by reference to Paper Filing)
10.62 Miscellaneous Services Agreement, dated as of February 5, 1992, between Central Life Assurance
Company and Midland Savings Bank FSB (now AmerUs Bank) (incorporated by reference to Common Stock
Offering)
10.63 Investment Management Agreement, dated as of August 15, 1992, between Central Life Assurance Company
and Midland Savings Bank FSB (now AmerUs Bank) (incorporated by reference to Common Stock Offering)
10.64 Disbursement Services Agreement, dated as of April 15, 1995, between American Mutual Life Insurance
Company and Midland Savings Bank FSB (now AmerUs Bank) (incorporated by reference to Common Stock
Offering)
10.65 Purchase Agreement, dated as of June 28, 1996, between AmerUs Life Insurance Company and AmerUs Bank
(incorporated by reference to Common Stock Offering)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
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<S> <C>
10.66 Brokerage Contract dated January 1, 1995, among American Mutual Life Insurance Company and Midland
Investment Services, Inc. (now AmerUs Investments, Inc.) (incorporated by reference to Common Stock
Offering)
10.67 Servicing Agreement, dated March 1, 1992, between Central Life Assurance Company and Midland
Investment Services, Inc. (now AmerUs Investments, Inc.) (incorporated by reference to Common Stock
Offering)
10.68 Tax Allocation Agreement dated as of November 4, 1996 (incorporated by reference to Common Amendment
No. 1)
10.69 Amended and Restated Articles of Limited Partnership of T.L.B. Limited Partnership, undated, among F.
Barry Tapp, Lartnec Investment Co., Michael H. Taylor, Michael Longley and Michael A. Hammond, along
with a Memorandum of Understanding Regarding Assignments of Partnership Interests dated December 21,
1988 and three corresponding Assignments of Partnership Interest dated December 6, 1988 wherein
Central Life Assurance Company is Assignee, and an Assignment of Partnership Interest of T.L.B.
Limited Partnership dated December 29, 1995, between Lartnec Investment Co. and AmerUs Properties,
Inc. (incorporated by reference to Paper Filing)
10.70 Assignment of Partnership Interest of T.L.B. Limited Partnership, dated December 28, 1994, between
Lartnec Investment Co. and Central Properties, Inc. (now AmerUs Properties, Inc.) and Assignment of
Limited Partnership Interest of T.L.B. Limited Partnership, dated December 30, 1995, between
American Mutual Life Insurance Company and AmerUs Properties, Inc. (incorporated by reference to
Common Amendment No. 1)
10.71 Limited Partnership Agreement of South 19th Limited Partnership, dated December 30, 1985, among
Lartnec Investment Co., F. Barry Tapp and Michael H. Taylor, along with a Memorandum of
Understanding Regarding Assignments of Partnership Interests dated December 21, 1988 and three
corresponding Assignments of Partnership Interest dated December 6, 1988 wherein Central Life
Assurance Company is Assignee, and an Assignment of Partnership Interest of South 19th Limited
Partnership dated December 29, 1995, between Lartnec Investment Co. and AmerUs Properties, Inc.
(incorporated by reference to Paper Filing)
10.72 Assignment of Partnership Interest of South 19th Limited Partnership, dated December 28, 1994,
between Lartnec Investment Co. and Central Properties, Inc. (now AmerUs Properties, Inc.) and
Assignment of Partnership Interest of South 19th Limited Partnership, dated December 30, 1995,
between American Mutual Life Insurance Company and AmerUs Properties, Inc. (incorporated by
reference to Common Amendment No. 1)
10.73 Limited Partnership Agreement of Theater Project Limited Partnership dated March 15, 1985, among Tapp
Management, Inc., Tapp Development Co., Ltd., Michael Longley, Michael A. Hammond and Gary L. Wood
along with an Amendment to Certificate of Limited Partnership, dated August 22, 1986, and an
Assigment of Limited Partnership Interest, dated November 15, 1992, between F. Barry Tapp and Tapp
Development Co., Ltd., and an Amended Certificate of Limited Partnership dated December 24, 1992
(incorporated by reference to Paper Filing)
10.74 Assignment of Limited Partnership Interest of Theater Project Limited Partnership, dated December 30,
1995, between American Mutual life Insurance Company and AmerUs Properties, Inc. (incorporated by
reference to Common Amendment No. 1)
10.75 Certificate of Limited Partnership and Limited Partnership Agreement of Lagos Vista Limited
Partnership, dated August 10, 1994, between Central Properties, Inc. (now AmerUs Properties, Inc.)
and Central Life Assurance Company (incorporated by reference to Paper Filing)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
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<S> <C>
10.76 Joint Venture Agreement, dated July 30, 1980, between F. Barry Tapp and Lartnec Investment Co., along
with an Assignment by F. Barry Tapp of Interest in Tapp & LICO Properties, dated December 24, 1981,
between F. Barry Tapp and Tapp Development Co., Ltd., an Assignment of Partnership Interest, dated
December 6, 1988, between Tapp Development Co., Ltd. and Central Life Assurance Company and an
Assignment of Joint Venture Interest of Tapp and LICO Properties, dated December 29, 1995, between
Lartnec Investment Co. and AmerUs Properties, Inc. (incorporated by reference to Paper Filing)
10.77 Assignment of Joint Venture Interest of Tapp and LICO Properties, dated December 28, 1994, between
Lartnec Investment Co. and Central Properties, Inc. (now AmerUs Properties, Inc.) and Assignment of
Joint Venture Interest of Tapp and LICO Properties, dated December 30, 1995, between American Mutual
Life Insurance Company and AmerUs Properties, Inc. (incorporated by reference to Common Amendment
No. 1)
10.78 Joint Venture Agreement, dated December 30, 1980, between MBT, Ltd. and Lartnec Investment Co., along
with an Assignment by F. Barry Tapp of Interest in MBT, Ltd., dated December 24, 1981, between F.
Barry Tapp and Tapp Development Co., Ltd., an Assignment by Michael H. Taylor of Interest in MBT,
Ltd., dated December 23, 1981, between Michael H. Taylor and Tapp Development Co., Ltd., an
Assignment of Limited Partnership Interest, dated December 6, 1988, between Tapp Development Co.,
Ltd. and Central Life Assurance Company, and an Assignment of Joint Venture Interest of Round Rock
Outlet, Ltd., dated December 29, 1995, between Lartnec Investment Co. and AmerUs Properties, Inc.
(incorporated by reference to Paper Filing)
10.79 Assignment of Joint Venture Interest of Round Rock Outlet, Ltd., dated December 28, 1994, between
Lartnec Investment Co. and Central Properties, Inc. (now AmerUs Properties, Inc.) and Assignment of
Joint Venture Interest of Round Rock Outlet, Ltd., dated December 30, 1995, between American Mutual
Life Insurance Company and AmerUs Properties, Inc. (incorporated by reference to Common Amendment
No. 1)
10.80 Revolving Credit and Term Loan Agreement, dated as of December 1996, among ALH, certain Signatory
Banks thereto and The Chase Manhattan Bank, Note issued by ALH and Borrower Pledge Agreement
(incorporated by reference to Common Amendment No. 3)
11.1 Computation of Pro Forma Earnings Per Share (incorporated by reference to Amendment No. 2 to the
Common Stock Offering filed on December 4, 1996 ("Common Amendment No. 2"))
12.1 Statement of Earnings to Combined Fixed Charges and Preferred Stock Dividends
21.1 List of Subsidiaries (incorporated by reference to Common Stock Offering)
23.1 Consent of KPMG Peat Marwick LLP
*23.2 Consent of James A. Smallenberger, Esq. (included in Exhibits 5.1 and 5.3)
*23.3 Consent of Richards, Layton & Finger (included in Exhibits 5.2 and 5.4)
*23.4 Consent of Sidley & Austin (included in Exhibits 8.1 and 8.2)
23.5 Consent of Tillinghast, a Towers Perrin Company
24.1 Powers of Attorney
25.1 Statement of Eligibility of Wilmington Trust Company as to the Guarantee
25.2 Statement of Eligibility of Wilmington Trust Company as to the Capital Securities
25.3 Statement of Eligibility of Wilmington Trust Company as to the Junior Subordinated Debentures
27.1 Financial Data Schedule (incorporated by reference to Common Amendment No. 2)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------------------------------------------------------------------------------------------------
<S> <C>
99.1 Opinion of Tillinghast, a Towers Perrin Company, dated October 26, 1995, regarding the establishment
and operation of the Closed Block (Common Stock Offering Exhibit No. 99.3) (incorporated by
reference to Common Amendment No. 1 Exhibit 99.3)
</TABLE>
- --------------
*Filed herewith.
PLEASE NOTE: The exhibit numbers identified above are identical to those used in
the Common Stock Offering, Common Amendment No. 1, the Paper Filing, Common
Amendment No. 2 or Common Amendment No. 3 except as otherwise indicated.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, AmerUs Life
Holdings, Inc., on behalf of the registrants, has duly caused this amendment to
the registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of Des Moines, Iowa on January 21, 1997.
AMERUS LIFE HOLDINGS, INC.
By: /s/ Roger K. Brooks
--------------------------------------
Roger K. Brooks
CHAIRMAN, PRESIDENT AND CHIEF
EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed on January 21, 1997 by the
following persons in the capacities indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE(S)
- -------------------------------------------------------- --------------------------------------------------------
<C> <S>
/s/ Roger K. Brooks
-------------------------------------------- Chairman, President and Chief Executive Officer
Roger K. Brooks (principal executive officer) and Director
/s/ Michael E. Sproule
-------------------------------------------- Executive Vice President and Chief Financial Officer
Michael E. Sproule (principal financial officer)
/s/ Michael G. Fraizer
-------------------------------------------- Senior Vice President and Controller/Treasurer
Michael G. Fraizer (principal accounting officer)
*
-------------------------------------------- Director
John R. Albers
*
-------------------------------------------- Director
Malcolm Candlish
</TABLE>
II-11
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE(S)
- -------------------------------------------------------- --------------------------------------------------------
<C> <S>
*
-------------------------------------------- Director
D T Doan
*
-------------------------------------------- Director
Thomas F. Gaffney
*
-------------------------------------------- Director
Sam C. Kalainov
*
-------------------------------------------- Director
John W. Norris, Jr.
*
-------------------------------------------- Director
Jack C. Pester
*
-------------------------------------------- Director
John A. Wing
*By: /s/ James A. Smallenberger
--------------------------------------------
(ATTORNEY IN FACT)
</TABLE>
II-12
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------------------------------------------------------------------------------------------------
<S> <C>
*1.1 Form of Underwriting Agreement between the Issuer, ALH and AmerUs Life on the one hand, and the
Representatives of the Underwriters, on behalf of the Underwriters, on the other hand.
2.1 Plan of Reorganization dated October 27, 1995 (incorporated by reference to ALH's Registration
Statement on Form S-1 filed on September 18, 1996 (SEC file number 333-12239) (the "Common Stock
Offering")
3.1 Articles of Incorporation of ALH (incorporated by reference to the Common Stock Offering)
3.2 Bylaws of ALH (incorporated by reference to the Common Stock Offering)
3.3 Amended and Restated Articles of Incorporation of ALH (as approved by the Iowa Insurance
Commissioner) (incorporated by reference to Amendment No. 3 to the Common Stock Offering filed on
December 12, 1996 ("Common Amendment No. 3") Exhibit No. 3.5)
3.4 Certificate of Trust of the Issuer
3.5 Trust Agreement
*3.6 Form of Amended and Restated Trust Agreement (as revised)
*4.1 Form of Indenture between ALH and Wilmington Trust Company, as Indenture Trustee (as revised)
*4.2 Form of Capital Security (included in Exhibit 3.6)
*4.3 Form of Junior Subordinated Debenture (included in Exhibit 3.6)
*4.4 Form of Guarantee Agreement between ALH and Wilmington Trust Company, as Guarantee Trustee (as
revised)
5.1 Opinion of James A. Smallenberger, Esq.
5.2 Opinion of Richards, Layton & Finger
5.3 Opinion of James A. Smallenberger dated January 21, 1997
5.4 Opinion of Richards, Layton & Finger dated January 21, 1997
8.1 Opinion of Sidley & Austin re: certain Tax Matters dated December 19, 1996
*8.2 Opinion of Sidley & Austin re: certain Tax Matters dated January 21, 1997
10.1 Amended and Restated Intercompany Agreement dated as of December 1, 1996, among American Mutual
Holding Company, AmerUs Group Co. and ALH (incorporated by reference to Common Amendment No. 3
Exhibit 10.81)
10.2 Joint Venture Agreement, dated as of March 8, 1996, between American Mutual Insurance Company and
Ameritas Life Insurance Corp., and First Amendment thereto dated as of April 1, 1996 between
American Mutual Insurance Company and Ameritas Life Insurance Corp. (incorporated by reference to
Amendment No. 1 to the Common Stock Offering filed on November 7, 1996 ("Common Amendment No. 1"))
10.3 Management and Administrative Service Agreement, dated as of April 1, 1996, among American Mutual
Life Insurance Company, Ameritas Variable Life Insurance Company and Ameritas Life Insurance Corp.
(incorporated by reference to Common Amendment No. 1)
10.4 Agreement and Plan of Merger, dated as of August 24, 1994, among Central Life Assurance Company and
American Mutual Life Insurance Company (incorporated by reference to Common Stock Offering)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
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<S> <C>
10.5 Line of Credit Application and Approval, dated February 28, 1996 and April 22, 1996, respectively,
between American Mutual Life Insurance Company and Federal Home Loan Bank of Des Moines
(incorporated by reference to Common Stock Offering)
10.6 All*AmerUs Supplemental Executive Retirement Plan, effective January 1, 1996 (incorporated by
reference to Common Stock Offering)
10.7 American Mutual Life Insurance Company Supplemental Pension Plan (which was curtailed as of December
31, 1995) (incorporated by reference to Common Stock Offering)
10.8 Central Life Assurance Company Supplemental Pension Plan (which was curtailed as of December 31,
1995) (incorporated by reference to the paper-only filing of Common Amendment No. 1 ("Paper
Filing"))
10.9 Management Incentive Plan (incorporated by reference to Paper Filing)
10.10 AmerUs Life Insurance Company Performance Share Plan (incorporated by reference to Paper Filing)
10.11 AmerUs Life Stock Incentive Plan (incorporated by reference to Common Stock Offering)
10.12 Employment Agreement, dated February 1, 1995, between American Mutual Life Insurance Company and Sam
C. Kalainov (incorporated by reference to Common Stock Offering)
10.13 AmerUs Life Non-Employee Director Stock Plan (incorporated by reference to Common Stock Offering)
10.14 Modification of Real Estate Contract, dated as of July 1, 1996, between AmerUs Life Insurance Company
and AmerUs Properties, Inc. (incorporated by reference to Common Stock Offering)
10.15 Asset Management and Disposition Agreement, dated January 3, 1995, between American Mutual Life
Insurance Company and Central Properties, Inc. (now AmerUs Properties, Inc.) (incorporated by
reference to Common Stock Offering)
10.16 Management Contract, dated January 1, 1993, between Central Life Assurance Company and Central
Properties, Inc. (now AmerUs Properties, Inc.) (incorporated by reference to Common Amendment No. 1)
10.17 Management Contract, dated November 1, 1994, between American Mutual Life Insurance Company and CPI
Resource Group (now AmerUs Group Co.) (incorporated by reference to Common Stock Offering)
10.18 Management Contract, dated January 1, 1993, between Central Life Assurance Company and Central
Properties, Inc. (now AmerUs Properties, Inc.) (incorporated by reference to Common Stock Offering)
10.19 Management Contract, dated January 1, 1995, between American Mutual Life Insurance Company and
Central Properties, Inc. (now AmerUs Properties, Inc.) (incorporated by reference to Common Stock
Offering)
10.20 Management Contract, dated July 1, 1994, between Central Life Assurance Company and CPI Resource
Group (now AmerUs Group Co.) (incorporated by reference to Common Stock Offering)
10.21 Management Contract, dated February 1, 1994, between Central Life Assurance Company and Central
Properties, Inc. (now AmerUs Properties, Inc.) (incorporated by reference to Paper Filing)
10.22 Management Contract, dated May 1, 1994, between Central Life Assurance Company and Central
Properties, Inc. (now AmerUs Properties, Inc. ) (incorporated by reference to Common Stock Offering)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
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<S> <C>
10.23 Management Contract, dated February 1, 1994, between Central Life Assurance Company and Central
Properties, Inc. (now AmerUs Properties, Inc. ) (incorporated by reference to Common Stock Offering)
10.24 Management Contract, dated January 4, 1994, between Central Life Assurance Company and CPI Resource
Group (now AmerUs Group Co.) (incorporated by reference to Common Stock Offering)
10.25 Management Contract, dated November 1, 1994, between American Mutual Life Insurance Company and CPI
Resource Group (now AmerUs Group Co.) (incorporated by reference to Common Stock Offering)
10.26 Lease - Business Property, dated December 1, 1995, between American Mutual Life Insurance Company and
AmerUs Leasing (incorporated by reference to Common Stock Offering)
10.27 Lease - Business Property, dated January 1, 1996, between American Mutual Life Insurance Company and
AmerUs Bank (incorporated by reference to Common Stock Offering)
10.28 Lease - Business Property, dated January 1, 1996, between American Mutual Life Insurance Company and
AmerUs Bank (incorporated by reference to Common Stock Offering)
10.29 Lease - Business Property, dated January 1, 1996, between American Mutual Life Insurance Company and
AmerUs Bank (incorporated by reference to Common Stock Offering)
10.30 Lease - Business Property, dated January 1, 1996, between American Mutual Life Insurance Company and
AmerUs Group (incorporated by reference to Common Stock Offering)
10.31 Lease - Business Property, dated January 1, 1996, between American Mutual Life Insurance Company and
AmerUs Group (incorporated by reference to Common Stock Offering)
10.32 Assumption and Amendment of Lease Agreement, dated as of November 27, 1993 among Central Life
Assurance Company, Midland Savings Bank FSB (now AmerUs Bank) and Midland Financial Mortgages, Inc.
(now AmerUs Mortgage, Inc.) (incorporated by reference to Paper Filing)
10.33 Form of Indemnification Agreement executed with directors and certain officers (incorporated by
reference to Common Stock Offering)
10.34 Amended and Restated Agreement and Certificate of Limited Partnership of CPI Housing Partners I,
L.P., dated as of September 1, 1995, among AmerUs Properties, Inc., American Mutual Life Insurance
Company and American Mutual Affordable Housing Partners, L.P. (incorporated by reference to Paper
Filing)
10.35 Amended and Restated Agreement of Limited Partnership of American Mutual Affordable Housing Partners,
L.P., dated as of September 1, 1995, among GrA Partners Joint Venture, AmerUs Properties, Inc.,
American Mutual Life Insurance Company, NCC Polar Company and NCC Orion Company (incorporated by
reference to Common Amendment No. 1)
10.36 Amended and Restated Agreement and Certificate of Limited Partnership of 65th & Vista, L.P., dated as
of September 1, 1995, among AmerUs Properties, Inc., American Mutual Life Insurance Company and
American Mutual Affordable Housing Partners, L.P. (incorporated by reference to Paper Filing)
10.37 Amended and Restated Agreement and Certificate of Limited Partnership of 60th & Vista, L.P., dated as
of September 1, 1995, among I.R.F.B. Joint Venture, American Mutual Life Insurance Company and
American Mutual Affordable Housing Partners, L.P. (incorporated by reference to Paper Filing)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
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<S> <C>
10.38 Certificate of Limited Partnership and Limited Partnership Agreement of CPI Housing Partners II,
L.P., dated March 27, 1995, between Central Properties, Inc. (now AmerUs Properties, Inc.) and
American Mutual Life Insurance (incorporated by reference to Paper Filing) Company
10.39 Amended and Restated Agreement and Certificate of Limited Partnership of API Housing Partners III,
L.P., dated as of March 1, 1996, among AmerUs Properties, Inc., American Mutual Life Insurance
Company, American Mutual Affordable Housing Partners II, L.P. and AmerUs Management, (incorporated
by reference to Paper Filing) Inc.
10.40 Certificate of Limited Partnership and Limited Partnership Agreement of API Housing Partners IV,
L.P., dated as of June, 1995, between AmerUs Properties, Inc. and American Mutual Life Insurance
Company (incorporated by reference to Paper Filing)
10.41 Amended and Restated Agreement and Certificate of Limited Partnership of API Housing Partners V,
L.P., dated as of March 1, 1996, among AmerUs Properties, Inc., American Mutual Life Insurance
Company, American Mutual Affordable Housing Partners II, L.P. and AmerUs Management, Inc.
(incorporated by reference to Paper Filing)
10.42 Amended and Restated Agreement and Certificate of Limited Partnership of API-Chimney Ridge Partners,
L.P., dated as of March 1, 1996, among AmerUs Properties, Inc., American Mutual Life Insurance
Company, American Mutual Affordable Housing Partners II, L.P. and AmerUs Management, Inc.
(incorporated by reference to Paper Filing)
10.43 Certificate of Limited Partnership and Limited Partnership Agreement of API Housing Partners VI,
L.P., dated as of October 10, 1995, between AmerUs Properties, Inc. and American Mutual Life
Insurance Company (incorporated by reference to Common Stock Offering)
10.44 Certificate of Limited Partnership and Limited Partnership Agreement of 86th & Meredith Associates,
L.P., dated as of February 14, 1995, between Central Properties, Inc. (now AmerUs Properties, Inc.)
and American Mutual Life Insurance Company (incorporated by reference to Paper Filing)
10.45 Certificate of Limited Partnership and Limited Partnership Agreement of Altoona Meadows Investors,
L.P., dated as of February 22, 1995, between KPI Investments, Inc. and Dennis Galeazzi (incorporated
by reference to Common Stock Offering)
10.46 First Amendment to the Certificate of Limited Partnership and Limited Partnership Agreement of
Altoona Meadows Investors, L.P., dated as of September 28, 1995, between KPI Investments, Inc. and
American Mutual Life Insurance Company (incorporated by reference to Common Stock Offering)
10.47 Loan Servicing Agreement, dated August 1, 1990, between Central Life Assurance Company and Midland
Financial Mortgages, Inc. (now AmerUs Mortgage), incorporated by reference to Exhibit 10.30 to
Central Resource Group, Inc.'s Registration Statement on Form S-1, Registration No. 33-48359, filed
on June 4, 1992
10.48 Construction Loan Servicing Agreement, dated November 20, 1995, between American Mutual Life
Insurance Company and AmerUs Properties, Inc. (incorporated by reference to Common Stock Offering)
10.49 Servicing Agreement, dated March 1996, between American Mutual Life Insurance Company and AmerUs
Properties, Inc. (incorporated by reference to Paper Filing)
10.50 Loan Servicing Agreement, dated September 1, 1994, between Central Life Assurance Company and Midland
Savings Bank, FSB (now AmerUs Bank) (incorporated by reference to Common Stock Offering)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
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<S> <C>
10.51 Miscellaneous Services Agreement, dated as of January 1, 1996, among American Mutual Life Insurance
Company, AmerUs Group Co., AmerUs Bank, AmerUs Mortgage, Inc., Iowa Realty Company, Inc., Midland
Homes, Inc., Iowa Title Company, AmerUs Insurance, Inc., and AmerUs Finance Inc. (incorporated by
reference to Common Stock Offering)
10.52 Amendment to Service Agreement, dated as of May 1, 1996, between American Mutual Life Insurance
Company and AmerUs Bank (incorporated by reference to Common Stock Offering)
10.53 Data Processing Service Agreement, dated November 1, 1989, between Central Life Assurance Company and
Midland Financial Savings and Loan Association (now AmerUs Bank), incorporated by reference to
Exhibit 10.29 to Central Resource Group, Inc.'s Registration Statement on Form S-1, Registration No.
33-48359, filed on June 4, 1992
10.54 First Amendment to Data Processing Service Agreement, dated as of September 30, 1990, between Central
Life Assurance Company and Midland Savings Bank FSB (now AmerUs Bank) (incorporated by reference to
Common Stock Offering)
10.55 Second Amendment to Data Processing Service Agreement, dated as of May 1, 1991, between Central Life
Assurance Company and Midland Savings Bank FSB (now AmerUs Bank) (incorporated by reference to
Common Stock Offering)
10.56 Third Amendment to Data Processing Service Agreement, dated as of October 1, 1991, between Central
Life Assurance Company and Midland Savings Bank, FSB (now AmerUs Bank) (incorporated by reference to
Common Stock Offering)
10.57 Fourth Amendment to Data Processing Service Agreement, dated as of January 2, 1992, between Central
Life Assurance Company and Midland Savings Bank, FSB (now AmerUs Bank) (incorporated by reference to
Common Stock Offering)
10.58 Fifth Amendment to Data Processing Service Agreement, dated as of July 1, 1993, between Central Life
Assurance Company and Midland Savings Bank FSB (now AmerUs Bank) (incorporated by reference to
Common Stock Offering)
10.59 Sixth Amendment to Data Processing Service Agreement, dated as of September 1, 1995, between American
Mutual Insurance Company and AmerUs Bank (incorporated by reference to Common Stock Offering)
10.60 Seventh Amendment to Data Processing Service Agreement, dated as of January 1, 1996, between American
Mutual Life Insurance Company and AmerUs Bank (incorporated by reference to Common Stock Offering)
10.61 Data Processing Support Services Agreement, dated as of July 1, 1993, between Central Life Assurance
Company and Midland Savings Bank, FSB (now AmerUs Bank) (incorporated by reference to Paper Filing)
10.62 Miscellaneous Services Agreement, dated as of February 5, 1992, between Central Life Assurance
Company and Midland Savings Bank FSB (now AmerUs Bank) (incorporated by reference to Common Stock
Offering)
10.63 Investment Management Agreement, dated as of August 15, 1992, between Central Life Assurance Company
and Midland Savings Bank FSB (now AmerUs Bank) (incorporated by reference to Common Stock Offering)
10.64 Disbursement Services Agreement, dated as of April 15, 1995, between American Mutual Life Insurance
Company and Midland Savings Bank FSB (now AmerUs Bank) (incorporated by reference to Common Stock
Offering)
10.65 Purchase Agreement, dated as of June 28, 1996, between AmerUs Life Insurance Company and AmerUs Bank
(incorporated by reference to Common Stock Offering)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
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<S> <C>
10.66 Brokerage Contract dated January 1, 1995, among American Mutual Life Insurance Company and Midland
Investment Services, Inc. (now AmerUs Investments, Inc.) (incorporated by reference to Common Stock
Offering)
10.67 Servicing Agreement, dated March 1, 1992, between Central Life Assurance Company and Midland
Investment Services, Inc. (now AmerUs Investments, Inc.) (incorporated by reference to Common Stock
Offering)
10.68 Tax Allocation Agreement dated as of November 4, 1996 (incorporated by reference to Common Amendment
No. 1)
10.69 Amended and Restated Articles of Limited Partnership of T.L.B. Limited Partnership, undated, among F.
Barry Tapp, Lartnec Investment Co., Michael H. Taylor, Michael Longley and Michael A. Hammond, along
with a Memorandum of Understanding Regarding Assignments of Partnership Interests dated December 21,
1988 and three corresponding Assignments of Partnership Interest dated December 6, 1988 wherein
Central Life Assurance Company is Assignee, and an Assignment of Partnership Interest of T.L.B.
Limited Partnership dated December 29, 1995, between Lartnec Investment Co. and AmerUs Properties,
Inc. (incorporated by reference to Paper Filing)
10.70 Assignment of Partnership Interest of T.L.B. Limited Partnership, dated December 28, 1994, between
Lartnec Investment Co. and Central Properties, Inc. (now AmerUs Properties, Inc.) and Assignment of
Limited Partnership Interest of T.L.B. Limited Partnership, dated December 30, 1995, between
American Mutual Life Insurance Company and AmerUs Properties, Inc. (incorporated by reference to
Common Amendment No. 1)
10.71 Limited Partnership Agreement of South 19th Limited Partnership, dated December 30, 1985, among
Lartnec Investment Co., F. Barry Tapp and Michael H. Taylor, along with a Memorandum of
Understanding Regarding Assignments of Partnership Interests dated December 21, 1988 and three
corresponding Assignments of Partnership Interest dated December 6, 1988 wherein Central Life
Assurance Company is Assignee, and an Assignment of Partnership Interest of South 19th Limited
Partnership dated December 29, 1995, between Lartnec Investment Co. and AmerUs Properties, Inc.
(incorporated by reference to Paper Filing)
10.72 Assignment of Partnership Interest of South 19th Limited Partnership, dated December 28, 1994,
between Lartnec Investment Co. and Central Properties, Inc. (now AmerUs Properties, Inc.) and
Assignment of Partnership Interest of South 19th Limited Partnership, dated December 30, 1995,
between American Mutual Life Insurance Company and AmerUs Properties, Inc. (incorporated by
reference to Common Amendment No. 1)
10.73 Limited Partnership Agreement of Theater Project Limited Partnership dated March 15, 1985, among Tapp
Management, Inc., Tapp Development Co., Ltd., Michael Longley, Michael A. Hammond and Gary L. Wood
along with an Amendment to Certificate of Limited Partnership, dated August 22, 1986, and an
Assigment of Limited Partnership Interest, dated November 15, 1992, between F. Barry Tapp and Tapp
Development Co., Ltd., and an Amended Certificate of Limited Partnership dated December 24, 1992
(incorporated by reference to Paper Filing)
10.74 Assignment of Limited Partnership Interest of Theater Project Limited Partnership, dated December 30,
1995, between American Mutual life Insurance Company and AmerUs Properties, Inc. (incorporated by
reference to Common Amendment No. 1)
10.75 Certificate of Limited Partnership and Limited Partnership Agreement of Lagos Vista Limited
Partnership, dated August 10, 1994, between Central Properties, Inc. (now AmerUs Properties, Inc.)
and Central Life Assurance Company (incorporated by reference to Paper Filing)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
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<S> <C>
10.76 Joint Venture Agreement, dated July 30, 1980, between F. Barry Tapp and Lartnec Investment Co., along
with an Assignment by F. Barry Tapp of Interest in Tapp & LICO Properties, dated December 24, 1981,
between F. Barry Tapp and Tapp Development Co., Ltd., an Assignment of Partnership Interest, dated
December 6, 1988, between Tapp Development Co., Ltd. and Central Life Assurance Company and an
Assignment of Joint Venture Interest of Tapp and LICO Properties, dated December 29, 1995, between
Lartnec Investment Co. and AmerUs Properties, Inc. (incorporated by reference to Paper Filing)
10.77 Assignment of Joint Venture Interest of Tapp and LICO Properties, dated December 28, 1994, between
Lartnec Investment Co. and Central Properties, Inc. (now AmerUs Properties, Inc.) and Assignment of
Joint Venture Interest of Tapp and LICO Properties, dated December 30, 1995, between American Mutual
Life Insurance Company and AmerUs Properties, Inc. (incorporated by reference to Common Amendment
No. 1)
10.78 Joint Venture Agreement, dated December 30, 1980, between MBT, Ltd. and Lartnec Investment Co., along
with an Assignment by F. Barry Tapp of Interest in MBT, Ltd., dated December 24, 1981, between F.
Barry Tapp and Tapp Development Co., Ltd., an Assignment by Michael H. Taylor of Interest in MBT,
Ltd., dated December 23, 1981, between Michael H. Taylor and Tapp Development Co., Ltd., an
Assignment of Limited Partnership Interest, dated December 6, 1988, between Tapp Development Co.,
Ltd. and Central Life Assurance Company, and an Assignment of Joint Venture Interest of Round Rock
Outlet, Ltd., dated December 29, 1995, between Lartnec Investment Co. and AmerUs Properties, Inc.
(incorporated by reference to Paper Filing)
10.79 Assignment of Joint Venture Interest of Round Rock Outlet, Ltd., dated December 28, 1994, between
Lartnec Investment Co. and Central Properties, Inc. (now AmerUs Properties, Inc.) and Assignment of
Joint Venture Interest of Round Rock Outlet, Ltd., dated December 30, 1995, between American Mutual
Life Insurance Company and AmerUs Properties, Inc. (incorporated by reference to Common Amendment
No. 1)
10.80 Revolving Credit and Term Loan Agreement, dated as of December 1996, among ALH, certain Signatory
Banks thereto and The Chase Manhattan Bank, Note issued by ALH and Borrower Pledge Agreement
(incorporated by reference to Common Amendment No. 3)
11.1 Computation of Pro Forma Earnings Per Share (incorporated by reference to Amendment No. 2 to the
Common Stock Offering filed on December 4, 1996 ("Common Amendment No. 2"))
12.1 Statement of Earnings to Combined Fixed Charges and Preferred Stock Dividends
21.1 List of Subsidiaries (incorporated by reference to Common Stock Offering)
23.1 Consent of KPMG Peat Marwick LLP
*23.2 Consent of James A. Smallenberger, Esq. (included in Exhibits 5.1 and 5.3)
*23.3 Consent of Richards, Layton & Finger (included in Exhibits 5.2 and 5.4)
*23.4 Consent of Sidley & Austin (included in Exhibits 8.1 and 8.2)
23.5 Consent of Tillinghast, a Towers Perrin Company
24.1 Powers of Attorney
25.1 Statement of Eligibility of Wilmington Trust Company as to the Guarantee
25.2 Statement of Eligibility of Wilmington Trust Company as to the Capital Securities
25.3 Statement of Eligibility of Wilmington Trust Company as to the Junior Subordinated Debentures
27.1 Financial Data Schedule (incorporated by reference to Common Amendment No. 2)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------------------------------------------------------------------------------------------------
<S> <C>
99.1 Opinion of Tillinghast, a Towers Perrin Company, dated October 26, 1995, regarding the establishment
and operation of the Closed Block (Common Stock Offering Exhibit No. 99.3) (incorporated by
reference to Common Amendment No. 1 Exhibit 99.3)
</TABLE>
- --------------
*Filed herewith.
PLEASE NOTE: The exhibit numbers identified above are identical to those used in
the Common Stock Offering, Common Amendment No. 1, the Paper Filing, Common
Amendment No. 2 or Common Amendment No. 3 except as otherwise indicated.
<PAGE>
1/13/97
AMERUS CAPITAL I
___% CAPITAL SECURITIES, SERIES A
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
-----------------------------
UNDERWRITING AGREEMENT
..................., 1997
Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
AmerUs Capital I, a statutory business trust organized under Delaware law
(the "Trust"), proposes, subject to the terms and conditions stated herein,
to issue and sell to Goldman, Sachs & Co. (the "Underwriters") an aggregate
of 75,000 shares (the "Firm Capital Securities") of __% Capital Securities,
Series A (liquidation amount $1,000 per capital security) (the "Preferred
Stock") of the Trust and up to an aggregate of 11,250 shares (the "Optional
Capital Securities") of Preferred Stock representing undivided beneficial
interests in the assets of the Trust, guaranteed to the extent set forth in a
guarantee agreement (the "Guarantee") between AmerUs Life Holdings, Inc., an
Iowa corporation (the "Guarantor") and Wilmington Trust Company, as trustee
(the "Guarantee Trustee"). The Firm Capital Securities and the Optional
Capital Securities that Goldman, Sachs & Co. elect to purchase pursuant to
Section 2 hereof are collectively referred to as the "Capital Securities".
The Trust is to purchase, with the proceeds of the sale of the Capital
Securities and the common securities of the Trust (the "Common Securities",
and together with the Capital Securities, the "Trust Securities"), __% Junior
Subordinated Debentures, Series A (the "Subordinated Debentures") of the
Guarantor, to be issued pursuant to a Junior Subordinated Indenture (the
"Indenture") between the Guarantor and Wilmington Trust Company, as trustee
(the "Debenture Trustee").
The Guarantor was formed in connection with a Plan of Reorganization (the
"Plan"), pursuant to which American Mutual Life Insurance Company, an Iowa
mutual life insurance company ("American Mutual") was reorganized into a mutual
insurance holding company structure (the "Reorganization") on June 30, 1996. On
____________, AmerUs Life Insurance Company, an Iowa stock life insurance
company ("AmerUs Life"), which is a wholly-owned subsidiary of the Guarantor and
the successor company of American Mutual, made a capital contribution of certain
assets (the "Capital Contribution") to certain of its non-life insurance
subsidiaries and a distribution of its non-life insurance subsidiaries (the
<PAGE>
"Distribution") to AmerUs Group Co.("AmerUs Group"), an Iowa corporation and the
sole shareholder of the Guarantor, which immediately afterwards contributed all
of its shares of common stock in AmerUs Life to the Guarantor. When the context
requires, references herein to AmerUs Life shall be deemed to be references to
American Mutual prior to the date AmerUs Life was formed.
1. Each of the Trust, the Guarantor and AmerUs Life, jointly and
severally, represents and warrants to, and agrees with, the Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-13713) (the
"Initial Registration Statement") in respect of the Capital Securities, the
Subordinated Debentures and the Guarantee (collectively, the "Registered
Securities") has been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any post-effective
amendment thereto, each in the form heretofore delivered to you, and,
excluding exhibits thereto, to you for each of the other Underwriters, have
been declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a "Rule
462(b) Registration Statement"), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act"), which became effective upon
filing, no other document with respect to the Initial Registration Statement
has heretofore been filed with the Commission; and no stop order suspending
the effectiveness of the Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose has been initiated or threatened by
the Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule 424(a)
of the rules and regulations of the Commission under the Act, is hereinafter
called a "Preliminary Prospectus"; the various parts of the Initial
Registration Statement and the Rule 462(b) Registration Statement, if any,
including all exhibits thereto and including the information contained in the
form of final prospectus filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof and deemed by virtue of
Rule 430A under the Act to be part of the Initial Registration Statement at
the time it was declared effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective, each
as amended at the time such part of the registration statement became
effective, is hereinafter collectively called the "Registration Statement";
and such final prospectus, in the form first filed pursuant to Rule 424(b)
under the Act, is hereinafter called the "Prospectus");
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus,
at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; PROVIDED, HOWEVER, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with
2
<PAGE>
information furnished in writing to the Trust or the Guarantor by the
Underwriters expressly for use therein;
(c) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the Trust Indenture Act of 1939, as amended (the "TIA") and the rules and
regulations of the Commission thereunder, and do not and will not, as of the
applicable effective date as to the Registration Statement and any amendment
thereto, and as of the applicable filing date as to the Prospectus and any
amendment or supplement thereto, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; PROVIDED, HOWEVER, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Trust or the Guarantor by the Underwriters expressly for use therein;
(d) Neither the Trust, the Guarantor nor any of the subsidiaries of the
Guarantor (each, a "Subsidiary", and collectively, the "Subsidiaries") has
sustained since the date of the latest audited financial statements included in
the Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock or long-term debt
of the Trust, the Guarantor or any of the Subsidiaries or any material adverse
change, or any development involving a prospective material adverse change, in
or affecting the general affairs, management, financial position, shareholders'
equity or results of operations of the Trust, the Guarantor or any of the
Subsidiaries, otherwise than as set forth or contemplated in the Prospectus;
(e) The Guarantor and the Subsidiaries have good and marketable title in
fee simple to all real property and good and marketable title to all personal
property owned by them, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Prospectus or such as do not
materially affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Guarantor and the
Subsidiaries; and any real property and buildings held under lease by the
Guarantor and the Subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by
them;
(f) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Business Trust Act of the
State of Delaware (the "Delaware Business Trust Act") with the power and
authority (trust and other) to own property and conduct its business as
described in the Prospectus, and has conducted and
3
<PAGE>
will conduct no business other than the transactions contemplated by this
Agreement, the Trust Agreement (as hereinafter defined) and as described in
the Prospectus; the Trust is not a party to or bound by any agreement or
instrument other than this Agreement, the Amended and Restated Trust
Agreement (the "Trust Agreement") between the Guarantor as Depositor and the
trustees named therein (the "Trustees") and the agreements and instruments
contemplated by the Trust Agreement and described in the Prospectus; the
Trust has no liabilities or obligations other than those arising out of the
transactions contemplated by this Agreement and the Trust Agreement and
described in the Prospectus; based on expected operations and current law,
the Trust is not and will not be classified as an association taxable as a
corporation for United States federal income tax purposes; and the Trust is
not a party to or subject to any action, suit or proceeding of any nature;
(g)
American Mutual Holding Company ("AMHC") has been duly organized and is
validly existing as a mutual insurance holding company in good standing under
the laws of the State of Iowa; each of the Guarantor and AmerUs Group has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of the State of Iowa; each subsidiary of the Guarantor has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation; and each of the Guarantor
and its subsidiaries has power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such qualification,
or is subject to no material liability or disability by reason of the failure to
be so qualified in any such jurisdiction;
(h)
Each of AMHC, AmerUs Group, the Guarantor and the Guarantor's
subsidiaries that are required to be organized and licensed as insurance
companies or insurance holding companies (the "Insurance Companies") is duly
organized and licensed as an insurance or insurance holding company in its
respective jurisdiction of organization or incorporation, as the case may be,
and is duly licensed or authorized in each other jurisdiction where it is
required to be so licensed or authorized to conduct its business as described in
the Prospectus, in each case with such exceptions, individually or in the
aggregate, as would not have a material adverse effect on the general affairs,
management, financial position, shareholders' equity or results of operations of
the Guarantor (such individual or aggregate effect being herein referred to as a
"Material Adverse Effect"); each of the Insurance Companies is in compliance
with the requirements of the insurance laws and regulations of its respective
jurisdiction of organization or incorporation, as the case may be, and the
insurance laws and regulations of other jurisdictions which are applicable to
it, and has filed all notices, reports, documents or other information
("Notices") required to be filed thereunder, in each case, with such exceptions
as would not have a Material Adverse Effect; and, except as otherwise
specifically described in the Prospectus, no Insurance
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Company has received any notification from any insurance regulatory authority to
the effect that any additional authorization, approval, order, consent, license,
certificate, permit, registration or qualification ("Approvals") from such
insurance regulatory authority is needed to be obtained by any of the Insurance
Companies in any case where it could be reasonably expected that obtaining such
Approvals or the failure to obtain such Approvals would have a Material Adverse
Effect;
(i) Without limiting the foregoing, each of the Insurance Companies
has filed all Notices pursuant to, and has obtained all Approvals required to
be obtained under, and has otherwise complied with all requirements of, all
applicable insurance laws and regulations (excluding insurance securities
laws other than those of the State of Iowa), in connection with the issuance
and sale of the Trust Securities, in each case (other than the insurance laws
and regulations of the State of Iowa, as to which no exception is taken) with
such exceptions, individually or in the aggregate, as would not affect the
validity of the Trust Securities, their issuance or the transactions
contemplated hereby or have a Material Adverse Effect; and no such Notices or
Approvals are required to be filed or obtained by any of the Insurance
Companies in connection with the issuance and sale of the Trust Securities,
in each case (other than the insurance laws of the State of Iowa, as to which
no exception is taken) with such exceptions, individually or in the
aggregate, as would not affect the validity of the Trust Securities, their
issuance or the transactions contemplated hereby or have a Material Adverse
Effect;
(j) The Guarantor has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Guarantor
have been duly and validly authorized and issued and are fully paid and
non-assessable; and all of the outstanding beneficial interests in the assets
of the Trust have been duly authorized and issued, are fully paid and
non-assessable and conform to the descriptions thereof contained in the
Prospectus; and all of the issued shares of capital stock of each Subsidiary
have been duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly or indirectly by the Guarantor, free
and clear of all liens, encumbrances, equities or claims;
(k) The Capital Securities have been duly and validly authorized by the
Trust and, when issued and delivered against payment therefor as provided
herein, will be duly and validly issued and fully paid and non-assessable
undivided beneficial interests in the assets of the Trust and will conform to
the description thereof contained in the Prospectus; the issuance of the
Capital Securities is not subject to preemptive or other similar rights; the
Capital Securities will have the rights set forth in the Trust Agreement; the
holders of the Capital Securities will be entitled to the same limitation of
personal liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of Delaware;
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(l) The Common Securities have been duly and validly authorized by the
Trust and, upon delivery by the Trust to the Guarantor against payment therefor
as described in the Prospectus, will be duly and validly issued undivided
beneficial interests in the assets of the Trust and will conform to the
description thereof contained in the Prospectus; the issuance of the Common
Securities is not subject to preemptive or other similar rights; and at each
Time of Delivery (as defined in Section 4 hereof), all of the issued and
outstanding Common Securities of the Trust will be directly owned by the
Guarantor free and clear of all liens, encumbrances, security interests,
equities or claims; and the Common Securities and the Capital Securities are
the only interests authorized to be issued by the Trust;
(m) The Guarantee, the Subordinated Debentures, the Trust Agreement, the
Agreement as to Expense and Liabilities between the Trust and the Guarantor (the
"Expense Agreement") and the Indenture (collectively, the "Guarantor
Agreements") have each been duly authorized and, when validly executed and
delivered by the Guarantor and, (i) in the case of the Guarantee, by the
Guarantee Trustee, (ii) in the case of the Trust Agreement, by the Trustees,
(iii) in the case of the Indenture, by the Debenture Trustee, and (iv) in the
case of the Subordinated Debentures, when validly authenticated and delivered by
the Debenture Trustee, will constitute valid and legally binding obligations of
the Guarantor, enforceable in accordance with their respective terms, subject,
as to enforcement, to bankruptcy, insolvency, moratorium, reorganization and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles (whether considered at a proceeding in equity
or at law); the Trust Agreement, the Indenture and the Guarantee have been duly
qualified under the TIA; the Subordinated Debentures are entitled to the
benefits of the Indenture; and the Guarantor Agreements will conform to the
descriptions thereof in the Prospectus;
(n) (i) The issue and sale of the Trust Securities by the Trust, (ii)
the issuance by the Guarantor of the Guarantee, (iii) the compliance by the
Trust, the Guarantor and AmerUs Life with all of the provisions of this
Agreement and the Guarantee (as applicable), (iv) the execution, delivery and
performance by the Guarantor of the Guarantor Agreements, (v) the purchase of
the Subordinated Debentures by the Trust, (vi) the distribution of the
Subordinated Debentures by the Trust in the circumstances contemplated by the
Trust Agreement, and (vii) the consummation of the transactions contemplated
herein and in the Trust Agreement (including consummation of the Plan, the
Distribution and the Capital Contribution) did not and will not, as the case
may be, conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the
Trust or the Guarantor or any of the Subsidiaries is a party or by which the
Trust or the Guarantor or any of the Subsidiaries is bound or to which any of
the property or assets of the Trust or the Guarantor or any of the
Subsidiaries is subject, nor did or will such action result in any violation
of the provisions of the Trust Agreement, the charter or other organizational
documents or bylaws of the Guarantor or any of the Subsidiaries or any
statute or any order, rule or regulation of any court or governmental
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agency or body having jurisdiction over the Trust or the Guarantor or any of
the Subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such court
or governmental agency or body is required for the issue and sale of the
Trust Securities, the issuance of the Guarantee, the purchase of the
Subordinated Debentures by the Trust, the distribution of the Subordinated
Debentures by the Trust in the circumstances contemplated by the Trust
Agreement, or the consummation by the Trust or the Guarantor of the
transactions contemplated by this Agreement and the Trust Agreement, except
(w) the registration under the Act of the Registered Securities, (x) the
qualification of the Trust Agreement, the Indenture and the Guarantee under
the TIA, (y) approvals required under the Iowa insurance laws and
regulations, all of which approvals have been obtained, and (z) such
consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws (including insurance
securities laws other than the insurance securities laws of the State of
Iowa) in connection with the purchase and distribution of the Capital
Securities by the Underwriters;
(o) The Trust is not in violation of its Certificate of Trust or (if
already executed) the Trust Agreement; neither the Guarantor nor any of the
Subsidiaries is in violation of its Articles of Incorporation or By-laws;
neither the Trust, the Guarantor nor any of the Subsidiaries is in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or
by which it or any of its properties may be bound which default would have a
Material Adverse Effect;
(p) The statements set forth in the Prospectus (a) under the captions
"Description of Preferred Securities", "Description of the Guarantee",
"Description of the Junior Subordinated Debentures", and "Relationship among the
Preferred Securities the Junior Subordinated Debentures and the Guarantee";
insofar as they purport to constitute a summary of the terms of the Preferred
Stock, the Guarantee and the Subordinated Debenture, respectively, (b) under the
captions "Risk Factors -- Risk Factors Relating to the Company -- Regulatory and
Related Matters"; "-- Risks Relating to the Closed Block"; "The Reorganization
and Distribution of the Non-Life Insurance Subsidiaries"; "The Common Stock
Offerings"; "Supervision and Regulation"; "Management Compensation --
Compensation Pursuant to the Stock Plans of the Company"; "-- Compensation
Pursuant to AmerUs Life Plans"; "-- Savings and Profit Sharing Plans"; "--
Employment Agreement"; "Certain Transactions and Relationships"; and
"Underwriting", insofar as they purport to describe the provisions of the laws
and documents referred to therein, are accurate, complete and fair;
(q) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Trust, the Guarantor or any of the
Subsidiaries is a party or of which any of their properties is the subject
which, if determined adversely to the Trust, the Guarantor or any of the
Subsidiaries, would individually or in the aggregate have a material adverse
effect on the current or future consolidated financial position,
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shareholders' equity or results of operations of the Trust, the Guarantor and
the Subsidiaries; and, to the best knowledge of the Trust, the Guarantor and
AmerUs Life, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(r) Neither the Trust, the Guarantor nor any Subsidiary is or, after
giving effect to the offering and sale of the Capital Securities, will be an
"investment company" or an entity "controlled" by an "investment company", as
such terms are defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(s) Neither the Trust, the Guarantor, AmerUs Life nor any of their
affiliates does business with the government of Cuba or with any person or
affiliate located in Cuba within the meaning of Section 517.075, Florida
Statutes;
(t) KPMG Peat Marwick LLP, who have certified certain financial statements
of the Guarantor and the Subsidiaries, are independent public accountants as
required by the Act and the rules and regulations of the Commission thereunder;
(u) The Plan has been duly adopted by the required vote of the Board of
Directors of American Mutual, and submitted to the Iowa Commissioner of
Insurance (the "Iowa Commissioner") in the manner required by the Iowa insurance
law relating to mutual insurance holding companies and conforms in all material
respects to the requirements of the laws of the State of Iowa applicable to the
reorganization of a mutual life insurance company into a mutual insurance
holding company system and any applicable rules, regulations or guidelines
published by the Iowa Commissioner in respect thereof; the Plan was duly
approved by the policyowners of American Mutual and such approval has not been
rescinded or otherwise withdrawn; the Plan was approved by the Iowa Commissioner
and such approval has not been rescinded or otherwise withdrawn; the
Reorganization became effective on June 30, 1996 pursuant to the Plan;
(v) This Agreement has been duly authorized, executed and delivered by the
Trust, the Guarantor and AmerUs Life; and
(w) The Distribution and the Capital Contribution have been duly
authorized by the required vote of the Board of Directors of AmerUs Life and all
necessary approvals for the Distribution and the Capital Contribution have been
obtained, all such approvals are in full force and effect and no other approvals
are required to be obtained; the Distribution and the Capital Contribution have
been consummated.
2. Subject to the terms and conditions herein set forth, (a) the Trust
agrees to issue and sell to the Underwriters, and the Underwriters agree to
purchase from the Trust, at a purchase price per share of $1,000.00, the Firm
Capital Securities and (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional Capital
Securities as provided below, the Trust agrees to issue and sell to the
Underwriters, and the Underwriters agree
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to purchase from the Trust, at the purchase price per share set forth in clause
(a) of this Section 2, the Optional Capital Securities.
The Trust hereby grants to the Underwriters the right to purchase at
their election up to 11,250 Optional Capital Securities, at the purchase
price per share set forth in the paragraph above, for the sole purpose of
covering overallotments in the sale of the Firm Capital Securities. Any such
election to purchase Optional Capital Securities may be exercised only by
written notice from you to the Trust, given within a period of 30 calendar
days after the date of this Agreement, setting forth the aggregate number of
Optional Capital Securities to be purchased and the date on which such
Optional Capital Securities are to be delivered, as determined by you but in
no event earlier than the First Time of Delivery (as defined in Section 4
hereof) or, unless you and the Trust otherwise agree in writing, earlier than
two or later than ten business days after the date of such notice.
As compensation to the Underwriters for their commitments hereunder, and
in view of the fact that the proceeds of the sale of the Capital Securities
will be used by the Trust to purchase the Subordinated Debentures of the
Guarantor, the Guarantor at each Time of Delivery (as defined in Section 4
hereof) will pay to Goldman, Sachs & Co., for the accounts of the
Underwriters, an amount equal to $.............. per share for the Capital
Securities to be delivered by the Trust hereunder at such Time of Delivery.
3. Upon the authorization by you of the release of the Firm Capital
Securities, the Underwriters propose to offer the Firm Capital Securities for
sale upon the terms and conditions set forth in the Prospectus.
4. (a) The Capital Securities to be purchased by the Underwriters
hereunder will be represented by one or more definitive global Capital
Securities in book-entry form which will be deposited by or on behalf of
the Trust with The Depository Trust Company ("DTC") or its designated
custodian. The Trust will deliver the Capital Securities to Goldman, Sachs
& Co., for the account of the Underwriters, against payment by or on behalf
of the Underwriters of the purchase price therefor by certified or official
bank check or checks, payable to the order of the Trust in New York
Clearing House (next day) funds, by causing DTC to credit the Capital
Securities to the account of Goldman, Sachs & Co. at DTC. The Trust will
cause the certificates representing the Capital Securities to be made
available to Goldman, Sachs & Co. for checking at least twenty-four hours
prior to the Time of Delivery (as defined below) at the office of DTC or
its designated custodian (the "Designated Office"). The time and date of
such delivery and payment shall be, with respect to the Firm Capital
Securities, 9:30 a.m., New York time, on
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...................., 1997 or such other time and date as Goldman, Sachs &
Co. and the Trust may agree upon in writing, and, with respect to the
Optional Capital Securities, 9:30 a.m., New York time, on the date specified
by Goldman, Sachs & Co. in the written notice given by Goldman, Sachs & Co.
of the Underwriters' election to purchase such Optional Capital Securities,
or such other time and date as Goldman, Sachs & Co. and the Trust may agree
upon in writing. Such time and date for delivery of the Firm Capital
Securities is herein called the "First Time of Delivery", such time and date
for delivery of the Optional Capital Securities, if not the First Time of
Delivery, is herein called the "Second Time of Delivery", and each such time
and date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Capital Securities and any additional documents
requested by the Underwriters pursuant to Section 7(n) hereof, will be
delivered at the offices of Sullivan & Cromwell, 125 Broad Street, New York,
New York 10004 or such other place as Goldman, Sachs & Co., the Trust and
the Guarantor may agree upon (the "Closing Location"), and the Capital
Securities will be delivered at the Designated Office, all at such Time of
Delivery. A meeting will be held at the Closing Location at 2:00 p.m., New
York City time, on the New York Business Day next preceding such Time of
Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the
parties hereto. For the purposes of this Section 4, "New York Business Day"
shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking institutions in New York are generally authorized or
obligated by law or executive order to close.
5. Each of the Trust, the Guarantor and AmerUs Life, jointly and
severally, agrees with the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Act; to make no
further amendment or any supplement to the Registration Statement or
Prospectus which shall be disapproved by you promptly after reasonable
notice thereof; to advise you, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement has been filed
or becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish you with copies thereof; to advise
you, promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or prospectus, of the suspension of the
qualification of the Registered Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the
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amending or supplementing of the Registration Statement or Prospectus or
for additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any Preliminary
Prospectus or prospectus or suspending any such qualification, promptly to
use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Registered Securities for offering and
sale under the securities laws of such jurisdictions as you may request and
to comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Capital Securities, provided that in
connection therewith neither the Trust nor the Guarantor shall be required
to qualify as a foreign corporation or to file a general consent to service
of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to
furnish the Underwriters with copies of the Prospectus in New York City in
such quantities as you may from time to time reasonably request, and, if
the delivery of a prospectus is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of the Capital Securities or the
Subordinated Debentures issuable upon exchange of the Capital Securities
and if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such period to amend or
supplement the Prospectus in order to comply with the Act or the TIA to
notify you and upon your request to prepare and furnish without charge to
the Underwriters and to any dealer in securities as many copies as you may
from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission
or effect such compliance, and in case the Underwriters are required to
deliver a prospectus in connection with the offering or sales of the
Capital Securities or the Subordinated Debentures issuable upon exchange of
the Capital Securities at any time nine months or more after the time of
issue of the Prospectus, upon your request but at the expense of the
Underwriters, to prepare and deliver to the Underwriters as many copies as
you may request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Act;
(d) In the case of the Guarantor, to make generally available to its
securityholders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement of the
Guarantor and the Subsidiaries (which need not
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be audited) complying with Section 11(a) of the Act and the rules and
regulations thereunder (including, at the option of the Trust or the
Guarantor, as the case may be, Rule 158);
(e) During the period beginning from the date hereof and continuing
to and including the earlier of (i) the termination of trading restrictions
on the Capital Securities, as determined by you or (ii) 30 days after the
last Time of Delivery, not to offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder, any securities of the Trust that
are substantially similar to the Capital Securities;
(f) To furnish to the holders of the Capital Securities as soon as
practicable after the end of each fiscal year an annual report (including a
balance sheet and statements of income, shareholders' equity and cash flows
of the Guarantor and its consolidated subsidiaries certified by independent
public accountants) and, as soon as practicable after the end of each of the
first three quarters of each fiscal year (beginning with the fiscal quarter
ending after the effective date of the Registration Statement),
consolidated summary financial information of the Guarantor and its
subsidiaries for such quarter in reasonable detail;
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to the shareholders of the
Guarantor, and to deliver to you (i) as soon as they are available, copies
of any reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which any class of
securities of the Trust or the Guarantor is listed; and (ii) such
additional information concerning the business and financial condition of
the Trust or the Guarantor as you may from time to time reasonably request
(such financial statements to be on a consolidated basis to the extent the
accounts of the Trust and the Guarantor and the Subsidiaries are
consolidated in reports furnished to the shareholders of the Guarantor
generally or to the Commission);
(h) To use the net proceeds received by it from the sale of the
Capital Securities, in the case of the Trust, and the Subordinated
Debentures, in the case of the Guarantor, pursuant to this Agreement in the
manner specified in the Prospectus under the caption "Use of Proceeds";
(i) Not to have the Trust be or become, at any time prior to the
expiration of three years after the latest Time of Delivery, an open-end
investment company, unit investment trust, closed-end investment company or
face-amount certificate company that is or is required to be registered
under Section 8 of the Investment Company Act;
(j) In the case of the Guarantor, to issue the Guarantee concurrently
with the issue and sale of the Capital Securities as contemplated herein;
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(k) If the Trust elects to rely upon Rule 462(b), to file a Rule
462(b) Registration Statement with the Commission in compliance with Rule
462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement,
and the Trust shall at the time of filing either to pay to the Commission
the filing fee for the Rule 462(b) Registration Statement or to give
irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act; and
(l) To file with the Commission such reports on Form SR as may be
required by Rule 463 under the Act.
6. Each of the Trust, the Guarantor and AmerUs Life jointly and
severally covenants and agrees with the Underwriters that the Trust will pay
or cause to be paid the following: (i) the fees, disbursements and expenses
of counsel and accountants for the Trust and the Guarantor in connection with
the registration of the Registered Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or
producing any Agreement among Underwriters, this Agreement, the Indenture,
the Trust Agreement, the Guarantee, closing documents (including any
compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Registered Securities; (iii) all
expenses in connection with the qualification of the Registered Securities
for offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters
in connection with such qualification; (iv) any fees charged by securities
rating services for rating the Capital Securities; (v) the filing fees
incident to, and the fees and disbursements of counsel for the Underwriters
in connection with, securing any required review by the National Association
of Securities Dealers, Inc. of the terms of the sale of the Capital
Securities; (vi) the cost of preparing certificates for the Capital
Securities and the Subordinated Debentures; (vii) the cost and charges of any
transfer agent or registrar; (viii) the fees and expenses of the Trustees,
the Debenture Trustee and the Guarantee Trustee and any agent thereof and the
fees and disbursements of their counsel; and (ix) all other costs and
expenses incident to the performance of its obligations hereunder which are
not otherwise specifically provided for in this Section. It is understood,
however, that, except as provided in this Section, and Sections 8 and 10
hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, stock transfer taxes on resale of any of
the Capital Securities by them, and any advertising expenses connected with
any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Capital
Securities to be delivered at each Time of Delivery, shall be subject, in
their discretion, to the condition that all representations and warranties
and other statements of the Trust, the Guarantor and AmerUs Life herein are,
at and as of such Time of Delivery, true and correct, the condition
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that the Trust, the Guarantor and AmerUs Life shall have performed all of their
respective obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section
5(a) hereof if the Trust has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Sullivan & Cromwell, counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated such Time of Delivery,
with respect to (i) the incorporation of the Guarantor and the formation of
the Trust; (ii) this Agreement; (iii) insofar as the federal laws of the
United States and the laws of the State of New York or the General
Corporation Law of the State of Delaware are concerned, the validity of the
Registered Securities being delivered at such Time of Delivery, (iv) the
Registration Statement and the Prospectus; and (v) such other related
matters as you may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them
to pass upon such matters;
(c) Sidley & Austin, counsel for the Trust, the Guarantor and AmerUs
Life, shall have furnished to you their written opinion, dated such Time of
Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Guarantor has been duly incorporated and is validly
existing as a corporation under the laws of the State of Iowa,
and AmerUs Life has been duly incorporated and is validly
existing as a stock life insurance company in good standing under
the laws of the State of Iowa, each with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus;
(ii) The Guarantor has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital
stock of the Guarantor have been duly and validly authorized and
issued and are fully paid and non-assessable;
(iii) To such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Trust, the Guarantor or any of
the Subsidiaries is a party or of which any property of the
Trust, the Guarantor or any of the Subsidiaries is the subject
which, if determined adversely to the Trust, the
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Guarantor or any of the Subsidiaries, would individually or in
the aggregate have a material adverse effect on the current or
future consolidated financial position, shareholders' equity or
results of operations of the Trust, the Guarantor and the
Subsidiaries; and, to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(iv) This Agreement has been duly authorized, executed and
delivered by the Guarantor and AmerUs Life;
(v) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or
body having jurisdiction over the Trust, the Guarantor or any
Subsidiary or any of their properties is required for the issue
and sale of the Trust Securities, the issuance of the
Guarantee, the purchase of the Subordinated Debentures by the
Trust, the distribution of the Subordinated Debentures by the
Trust in the circumstances contemplated by the Trust Agreement,
or the consummation by the Trust or the Guarantor of the
transactions contemplated by this Agreement or the Trust
Agreement, except (i) the registration under the Act of the
Registered Securities, (ii) the qualification of the Trust
Agreement, the Indenture and the Guarantee under the TIA, (iii)
approvals required under the Iowa insurance laws and regulations,
all of which approvals have been obtained, and (iv) such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities,
insurance securities or Blue Sky laws (including insurance
securities laws other than the insurance securities laws of the
State of Iowa) in connection with the purchase and distribution
of the Capital Securities by the Underwriters;
(vi) The statements set forth in the Prospectus (a) under the
captions "Description of Preferred Securities", "Description of
the Guarantee", "Description of the Junior Subordinated
Debentures", and "Relationship among the Preferred Securities the
Junior Subordinated Debentures and the Guarantee"; insofar as
they purport to constitute a summary of the terms of the
Preferred Stock, the Guarantee and the Subordinated Debenture,
respectively, (b) under the captions "Risk Factors -- Risk
Factors Relating to the Company -- Regulatory and Related
Matters"; "-- Risks Relating to the Closed Block"; "The
Reorganization and Distribution of the Non-Life Insurance
Subsidiaries"; "The Common Stock Offerings"; "Supervision and
Regulation"; "Management Compensation -- Compensation Pursuant to
the Stock Plans of the Company"; "-- Compensation Pursuant to
AmerUs Life Plans"; "-- Savings and Profit Sharing Plans"; "--
Employment Agreement"; "Certain Transactions and Relationships";
and "Underwriting", insofar as
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they purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair in all
material respects;
(vii) Neither the Trust, the Guarantor nor any Subsidiary is an
"investment company" or an entity "controlled" by an "investment
company", as such terms are defined in the Investment Company
Act;
(viii) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Trust
prior to such Time of Delivery (other than the financial
statements, financial data and related schedules therein and Form
T-1, as to which such counsel need express no opinion) comply as
to form in all material respects with the requirements of the Act
and the rules and regulations thereunder; although they do not
assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration
Statement or the Prospectus, except for those referred to in the
opinion in subsection (vi) of this section 7(c), nothing has come
to their attention which would cause them to believe that, as of
its effective date, the Registration Statement or any further
amendment thereto made by the Trust prior to such Time of
Delivery (other than the financial statements, financial data and
related schedules therein and Form T-1, as to which such counsel
need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or that, as of its date, the Prospectus or any further
amendment or supplement thereto made by the Trust or the
Guarantor prior to such Time of Delivery (other than the
financial statements, financial data and related schedules
therein and Form T-1, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading or that, as of such Time of Delivery, either
the Registration Statement or the Prospectus or any further
amendment or supplement thereto made by the Trust or the
Guarantor prior to such Time of Delivery (other than the
financial statements, financial data and related schedules
therein and Form T-1, as to which such counsel need express no
opinion) contains an untrue statement of a material fact or omits
to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and they do not know of any amendment to
the Registration Statement required to be filed or of any
contracts or other documents of a character required to be filed
as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus which
are not filed or described as required;
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(ix) To such counsel's knowledge, the Trust is not
a party to or bound by any agreement or instrument other than the
Trust Agreement, this Agreement, and the agreements and
instruments contemplated by the Trust Agreement and described in
the Prospectus; and to the best of such counsel's knowledge,
there are no legal or governmental proceedings pending to which
the Trust is a party or of which any property of the Trust is the
subject and no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and
(x) The Indenture, the Subordinated Debentures, the Expense
Agreement and the Guarantee each constitutes a valid and legally
binding obligation of the Guarantor, enforceable in accordance
with their respective terms, and the Expense Agreement
constitutes a valid and binding obligation of the Trust,
enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer,
fraudulent conveyance, reorganization, moratorium or other laws
now or hereafter in effect affecting creditors' rights generally,
and general principles of equity (whether such principles are
considered in a proceeding in equity or at law); the Subordinated
Debentures are entitled to the benefits provided by the
Indenture; the Trust Agreement, the Indenture, the Expense
Agreement and the Guarantee conform in all material respects to
the descriptions thereof contained in the Prospectus; and the
Trust Agreement, the Indenture and the Guarantee have been duly
qualified under the TIA; and
(xi) The Capital Securities and the Common Securities conform
in all material respects to the descriptions thereof contained in
the Prospectus;
In rendering such opinion, such counsel may state that insofar as
their opinion under clause (viii) above relates to the accuracy and
completeness of the Prospectus and Registration Statement and amendments or
supplements thereto, it is based upon a general review with representatives
of the Trust, the Guarantor and AmerUs Life, and their independent
accountants, of the information contained therein, without independent
verification by such counsel of the accuracy or completeness of such
information. Such counsel may also rely upon the opinions of other
competent counsel and, as to factual matters, on certificates of officers
of the Trust, the Guarantor or AmerUs Life and of state officials, in which
case their opinion is to state that they are so doing and copies of such
opinions or certificates are to be attached to the opinion unless such
opinions or certificates (or, in the case of certificates, the information
therein) have been furnished to Goldman, Sachs & Co. otherwise.
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In rendering such opinion, such counsel may also state that they have
relied as to facts necessary to the determination of materiality, to a
certain extent, upon the judgment of officers and representatives of the
Trust, the Guarantor or AmerUs Life.
(d) James A. Smallenberger, Esq., Senior Vice President and Secretary of
the Guarantor, shall have furnished to you his written opinion, dated such Time
of Delivery, in form and substance satisfactory to you, to the effect that:
(i) AMHC has been duly organized and is validly existing as a
mutual insurance holding company in good standing under the laws
of the State of Iowa, each of the Guarantor and AmerUs Group has
been duly incorporated and is validly existing as a corporation
under the laws of the State of Iowa, and AmerUs Life has been
duly incorporated and is validly existing as a stock life
insurance company in good standing under the laws of the State of
Iowa, each with power and authority (corporate and other) to own
its properties and conduct its business as described in the
Prospectus;
(ii) The Guarantor has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital
stock of the Guarantor have been duly and validly authorized and
issued and are fully paid and non-assessable; and all of the
issued and outstanding Common Securities are directly owned by
the Guarantor free and clear of all liens, encumbrances, security
interests, equities or claims;
(iii) Each of the Guarantor and the Subsidiaries has been duly
qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification or is subject to
no material liability or disability by reason of failure to be so
qualified in any such jurisdiction (such counsel being entitled
to rely in respect of the opinion in this clause upon opinions of
local counsel and in respect of matters of fact upon certificates
of officers of the Guarantor or the Subsidiaries, provided that
such counsel shall state that they believe that both you and they
are justified in relying upon such opinions and certificates);
(iv) Each Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation; and all of the issued shares of
capital stock of each such Subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable, and
are owned directly or indirectly by the Guarantor, free and clear
of all liens, encumbrances, equities or claims (such counsel being
entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in
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respect to matters of fact upon certificates of officers of the
Guarantor or the Subsidiaries, provided that such counsel shall
state that they believe that both you and they are justified in
relying upon such opinions and certificates);
(v) The Guarantor and the Subsidiaries have good and
marketable title in fee simple to all real property owned by
them, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus or such as
do not materially affect the value of the Guarantor and the
Subsidiaries, taken as a whole, and do not interfere with the use
made and proposed to be made of such property by the Guarantor or
the Subsidiaries; and any real property and buildings held under
lease by the Guarantor or the Subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the
Guarantor or the Subsidiaries (in giving the opinion in this
clause, such counsel may state that no examination of record
titles for the purpose of such opinion has been made, and that
they are relying upon a general review of the titles of the
Guarantor and the Subsidiaries, upon opinions of local counsel
and abstracts, reports and policies of title companies rendered
or issued at or subsequent to the time of acquisition of such
property by the Guarantor or the Subsidiaries, upon opinions of
counsel to the lessors of such property and, in respect to
matters of fact, upon certificates of officers of the Guarantor
or the Subsidiaries, provided that such counsel shall state that
they believe that both you and they are justified in relying upon
such opinions, abstracts, reports, policies and certificates);
(vi) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Trust, the Guarantor or any of
the Subsidiaries is a party or of which any property of the
Trust, the Guarantor or any of the Subsidiaries is the subject
which, if determined adversely to the Trust, the Guarantor or any
of the Subsidiaries, would individually or in the aggregate have
a material adverse effect on the current or future consolidated
financial position, shareholders' equity or results of operations
of the Trust, the Guarantor and the Subsidiaries; and, to the
best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
(vii) This Agreement has been duly authorized, executed and
delivered by the Guarantor and AmerUs Life;
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(viii) The Plan has been duly adopted by the Board of Directors
of American Mutual and all necessary approvals for the Plan to
become effective have been obtained, all such approvals are in
full force and effect and no other approvals are required to be
obtained; the Reorganization became effective June 30, 1996
pursuant to the Plan;
(ix) The Distribution and the Capital Contribution have been
duly authorized by the required vote of the Board of Directors of
AmerUs Life and all necessary approvals for the Distribution and
the Capital Contribution have been obtained, all such approvals
are in full force and effect and no other approvals are required
to be obtained;
(x) Each of the Insurance Companies is duly organized and
licensed, or qualifies, as an insurance or insurance holding
company in its respective jurisdiction of organization or
incorporation, as the case may be, and is duly licensed or
authorized in each other jurisdiction where it is required to be
so licensed or authorized to conduct its business as described in
the Prospectus, in each case with such exceptions, individually
or in the aggregate, as would not have a Material Adverse Effect;
each of the Insurance Companies is in compliance with the
requirements of the insurance laws and regulations of its
respective jurisdiction of organization or incorporation, as the
case may be, and the insurance laws and regulations of other
jurisdictions which are applicable to it, and has filed all
Notices required to be filed thereunder, in each case, with such
exceptions as would not have a Material Adverse Effect; and,
except as otherwise specifically described in the Prospectus, no
Insurance Company has received any notification from any
insurance regulatory authority to the effect that any additional
Approvals from such insurance regulatory authority is needed to
be obtained by any of the Insurance Companies in any case where
it could be reasonably expected that obtaining such Approvals or
the failure to obtain such Approvals would have a Material
Adverse Effect;
(xi) Without limiting the foregoing, each of the Insurance
Companies has filed all Notices pursuant to, and has obtained all
Approvals required to be obtained under, and has otherwise
complied with all requirements of, all applicable insurance laws
and regulations (excluding insurance securities laws other than
those of the State of Iowa), in connection with the issuance and
sale of the Trust Securities, in each case (other than the
insurance laws of the State of Iowa, as to which no exception is
taken) with such exceptions, individually or in the aggregate, as
would not affect the validity of the Trust Securities, their
issuance or the transactions contemplated hereby or have a
Material Adverse Effect; and no such Notices or Approvals are
required to be filed
20
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or obtained by any of the Insurance Companies in connection with
the issuance and sale of the Trust Securities, in each case
(other than the insurance laws and regulations of the
tate of Iowa, as to which no exception is taken) with such
exceptions, individually or in the aggregate, as would not affect
the validity of the Trust Securities, their issuance or the
transactions contemplated hereby or have a Material Adverse
Effect;
(xii) The issue and sale of the Trust Securities being delivered
at such Time of Delivery by the Trust, the issuance by the
Guarantor of the Guarantee, the compliance by the Trust, the
Guarantor and AmerUs Life with all of the provisions of
this Agreement and the Guarantee (as applicable), the execution,
delivery and performance by the Guarantor of the Guarantor
Agreements, the purchase of the Subordinated Debentures
by the Trust, the distribution of the Subordinated Debentures by
the Trust in the circumstances contemplated by the Trust
Agreement, and the consummation of the transactions herein and
therein contemplated (including consummation of the Plan, the
Distribution and the Capital Contribution) did not and will not,
as the case may be, conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such counsel
to which the Trust or the Guarantor or any of the Subsidiaries is
a party or by which the Trust or the Guarantor or any of the
Subsidiaries is bound or to which any of the property or assets
of the Trust or the Guarantor or any of the Subsidiaries is
subject, nor did or will such action result in any violation of
the provisions of the Trust Agreement, charter or other
organizational documents of the Guarantor or any of the
Subsidiaries or any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or body
having jurisdiction over the Trust or the Guarantor or any of the
Subsidiaries or any of their properties;
(xiii) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or
body having jurisdiction over the Trust, the Guarantor or any
Subsidiary or any of their properties is required for the issue
and sale of the Trust Securities, the issuance of the
Guarantee, the purchase of the Subordinated Debentures by the
Trust, the distribution of the Subordinated Debentures by the
Trust in the circumstances contemplated by the Trust Agreement,
or the consummation by the Trust or the Guarantor of the
transactions contemplated by this Agreement and the Trust
Agreement, except (i) the registration under the Act of the
Registered Securities, (ii) the qualification of the Trust
Agreement, the Indenture and the Guarantee
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under the TIA, (iii) approvals required under the Iowa insurance
laws and regulations, all of which approvals have been obtained,
and (iv) such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities,
insurance securities or Blue Sky laws (including insurance
securities laws other than the insurance securities laws of the
State of Iowa) in connection with the purchase and distribution
of the Capital Securities by the Underwriters;
(xiv) The Trust is not in violation of its Certificate of Trust
or the Trust Agreement; neither the Guarantor nor any of the
Subsidiaries is in violation of its Articles of Incorporation or
By-laws; neither the Trust, the Guarantor nor any of the
Subsidiaries is in default in the performance or observance of
any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is
a party or by which it or any of its properties may be bound;
(xv) The statements set forth in the Prospectus (a) under the
captions "Description of Preferred Securities", "Description of
the Guarantee", "Description of the Junior Subordinated
Debentures", and "Relationship among the Preferred Securities the
Junior Subordinated Debentures and the Guarantee"; insofar as
they purport to constitute a summary of the terms of the
Preferred Stock, the Guarantee and the Subordinated Debenture,
respectively, (b) under the captions "Risk Factors -- Risk
Factors Relating to the Company -- Regulatory and Related
Matters"; "-- Risks Relating to the Closed Block"; "The
Reorganization and Distribution of the Non-Life Insurance
Subsidiaries"; "The Common Stock Offerings"; "Supervision and
Regulation"; "Management Compensation -- Compensation Pursuant to
the Stock Plans of the Company"; "-- Compensation Pursuant to
AmerUs Life Plans"; "-- Savings and Profit Sharing Plans"; "--
Employment Agreement"; "Certain Transactions and Relationships";
and "Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein, are
accurate, complete and fair in all material respects;
(xvi) Although he does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in
the Registration Statement or the Prospectus, except for those
referred to in the opinion in subsection (xv) of this section
7(d), such counsel has no reason to believe that, as of its
effective date, the Registration Statement or any further
amendment thereto made by the Trust prior to such Time of
Delivery (other than the financial statements, financial data and
related schedules therein and Form T-1, as to which such counsel
need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the
22
<PAGE>
statements therein not misleading or that, as of its date, the
Prospectus or any further amendment or supplement thereto made by
the Trust or the Guarantor prior to such Time of Delivery (other
than the financial statements, financial data and related
schedules therein and Form T-1, as to which such counsel need
express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading or that, as of such Time of
Delivery, either the Registration Statement or the Prospectus or
any further amendment or supplement thereto made by the Trust or
the Guarantor prior to such Time of Delivery (other than the
financial statements, financial data and related schedules
therein and Form T-1, as to which such counsel need express no
opinion) contains an untrue statement of a material fact or omits
to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and he does not know of any amendment to
the Registration Statement required to be filed or of any
contracts or other documents of a character required to be filed
as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus which
are not filed or described as required;
(xvii) To the best of such counsel's knowledge, the Trust is not
a party to or bound by any agreement or instrument other than the
Trust Agreement, this Agreement, and the agreements and
instruments contemplated by the Trust Agreement and described in
the Prospectus; and to the best of such counsel's knowledge,
there are no legal or governmental proceedings pending to which
the Trust is a party or of which any property of the Trust is the
subject and no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(xviii) The Guarantor Agreements each have been duly authorized,
executed and delivered by the Guarantor and/or the Trust, as the
case may be, and such Agreements (other than the Trust Agreement,
as to which such counsel need express no opinion) constitute
valid and legally binding obligations of the Guarantor,
enforceable in accordance with their respective terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and
other laws relating to or affecting creditors' rights and to
general equitable principles; the Subordinated Debentures are
entitled to the benefits provided by the Indenture;
In rendering such opinion, such counsel may state that insofar as his
opinion under clause (xvi) above relates to the accuracy and completeness
of the Prospectus and Registration Statement and amendments or supplements
thereto, it is based
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upon a general review with representatives of the Trust, the Guarantor and
AmerUs Life, and their independent accountants, of the information
contained therein, without independent verification by such counsel of the
accuracy or completeness of such information. Such counsel may also rely
upon the opinions of other competent counsel and, as to factual matters, on
certificates of officers of the Trust, the Guarantor or AmerUs Life and of
state officials, in which case their opinion is to state that they are so
doing and copies of such opinions or certificates are to be attached to the
opinion unless such opinions or certificates (or, in the case of
certificates, the information therein) have been furnished to Goldman,
Sachs & Co. otherwise.
(e) Richards, Layton & Finger, special Delaware counsel to the Trust,
the Guarantor and AmerUs Life, shall have furnished to you, the Guarantor
and the Trust their written opinion, dated such Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) The Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Business
Trust Act, and all filings required under the laws of the State
of Delaware with respect to the creation and valid existence of
the Trust as a business trust have been made;
(ii) Under the Delaware Business Trust Act and the Trust
Agreement, the Trust has the power and authority to own property
and conduct its business, all as described in the Prospectus;
(iii) The Trust Agreement constitutes a valid and binding
obligation of the Guarantor and the Trustees, enforceable against
the Guarantor and the Trustees in accordance with its terms, and
the terms of the Capital Securities as set forth in the Trust
Agreement are valid and binding obligations of the Trust in
accordance with the terms of the Trust Agreement, all subject,
as to enforcement, to (A) bankruptcy, insolvency, moratorium,
receivership, liquidation, fraudulent conveyance, reorganization
and other laws of general applicability relating to or affecting
creditors' remedies and rights, (B) general equity principles,
including applicable laws relating to fiduciary duties (regardless
of whether considered or applied in a proceeding at equity or at
law) and (C) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or
contribution;
(iv) Under the Delaware Business Trust Act and the Trust
Agreement, the Trust has the trust power and authority to (a)
execute and deliver, and to perform its obligations under, this
Agreement and the Expense Agreement and (b) issue and perform
its obligations under the Capital Securities and Common
Securities;
(v) Under the Delaware Business Trust Act and the Trust
Agreement, the execution and delivery by the Trust of this
Agreement and the Expense Agreement, and the performance
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by the Trust of its obligations hereunder and thereunder, have
been duly authorized by all necessary action on the part of the
Trust;
(vi) The Capital Securities have been duly authorized by the
Trust and are duly and validly issued and, subject to the
qualifications set forth herein, fully paid and non-assessable
undivided beneficial interests in the assets of the Trust; the
Capital Securities will be entitled to the benefits of the Trust
Agreement (subject to the terms of the Trust Agreement); the
holders of the Capital Securities, as beneficial owners of the
Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations
for profit organized under the General Corporation Law of the
State of Delaware; provided that such counsel may note that the
holders of the Capital Securities may be obligated, pursuant to
the Trust Agreement, to (a) provide indemnity and/or security in
connection with and pay a sum sufficient to cover any taxes or
governmental charges arising from transfers or exchanges of
certificates for the Capital Securities and the issuance of
replacement certificates for the Capital Securities and (b)
provide security and/or indemnity in connection with requests of
or directions to the Property Trustee (as defined in the Trust
Agreement) to exercise its rights and powers under the Trust
Agreement;
(vii) The Common Securities have been duly and validly
authorized by the Trust Agreement and are duly and validly issued
and represent undivided beneficial interests in the assets of
Trust;
(viii) Under the Delaware Business Trust Act and the Trust
Agreement, the issuance of the Capital Securities and the
Common Securities is not subject to preemptive rights;
(ix) The issuance and sale by the Trust of the Trust
Securities, the execution, delivery and performance by the
Trust of this Agreement, compliance by the Trust with all of the
provisions of the Capital Securities, the Trust Agreement
and this Agreement, and the consummation by the Trust of the
transactions contemplated hereby and thereby will not violate (a)
any of the provisions of the Certificate of Trust of the Trust or
the Trust Agreement, or (b) any applicable Delaware law, rule or
regulation;
(x) No authorization, approval, consent or order of any
Delaware court or governmental authority or agency is required to
be obtained by the Trust solely in connection with the issuance
and sale of the Trust Securities; and
(xi) Assuming that the Trust derives no income from or
connected with sources within the State of Delaware and has no
assets, activities (other than having a Delaware trustee as
required by the Delaware Business Trust Act and the filing of
documents with the Secretary of State of the State of Delaware)
or employees in the State of Delaware, and assuming that the
Trust is treated
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as a grantor trust for United States federal income tax purposes,
the holders of the Capital Securities (other than those holders
of the Capital Securities who reside or are domiciled in the State
of Delaware) will have no liability for income taxes imposed by
the State of Delaware solely as a result of their participation in
the Trust, and the Trust will not be liable for any income tax
imposed by the State of Delaware.
In giving such opinion, such counsel may rely, as to all matters governed
by the laws of jurisdictions in which such counsel is not qualified, upon
opinions of other counsel, who shall be counsel satisfactory to counsel for
the Representatives, in which case the opinion shall state that they
believe you and they are entitled to rely on such opinions.
(f) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of
any post-effective amendment to the Registration Statement filed subsequent
to the date of this Agreement and also at each Time of Delivery, KPMG Peat
Marwick LLP shall have furnished to you a letter or letters, dated the
respective dates of delivery thereof, in form and substance satisfactory to
you, to the effect set forth in Annex I hereto;
(g) The Trust Agreement, the Guarantee and the Indenture shall have
been executed and delivered, in each case in a form reasonably satisfactory
to you;
(h) (i) Neither the Trust, the Guarantor nor any of the Subsidiaries
shall have sustained since the date of the latest audited financial
statements included in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Prospectus, and (ii) since the respective dates as of which information is
given in the Prospectus there shall not have been any change in the capital
stock or long-term debt of the Trust, the Guarantor or any of the
Subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Trust, the
Guarantor or any of the Subsidiaries, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case
described in Clause (i) or (ii), is in the judgment of the Representatives
so material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Capital Securities
being delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus;
(i) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Capital Securities or AmerUs Life's
financial strength or claims paying ability by A.M. Best or any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the
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Act, and (ii) no such organization shall have publicly announced that it
has under surveillance or review, with possible negative implications, its
rating of the Capital Securities or AmerUs Life's financial strength or
claims paying ability;
(j) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange or the National
Association of Securities Dealers Automated Quotations National Market;
(ii) a suspension or material limitation in trading in the Guarantor's
securities on the National Association of Securities Dealers Automated
Quotations National Market; (iii) a general moratorium on commercial
banking activities declared by either Federal or New York State
authorities; or (iv) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war, if the effect of any such event specified in this Clause
(iv) in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Capital Securities being delivered at such Time of Delivery on the terms
and in the manner contemplated in the Prospectus;
(k) None of the Plan, the Distribution or the Capital Contribution
shall have been revoked, rescinded, modified or withdrawn;
(l) The Trust shall have obtained and delivered to the Underwriters
executed copies of an agreement from the Guarantor, substantially to the
effect set forth in Subsection 5(e) hereof in form and substance
satisfactory to you;
(m) The Trust, the Guarantor and AmerUs Life shall have furnished or
caused to be furnished to you at such Time of Delivery certificates of
officers of the Trust, the Guarantor and AmerUs Life satisfactory to you as
to the accuracy of the representations and warranties of the Trust, the
Guarantor and AmerUs Life herein at and as of such Time of Delivery, as to
the performance by the Trust, the Guarantor and AmerUs Life of all of its
obligations hereunder to be performed at or prior to such Time of Delivery,
as to the matters set forth in subsections (a) and (h) of this Section and
as to such other matters as you may reasonably request; and
(n) The Trust shall have complied with the provisions of Section 5(c)
hereto with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement.
8. (a) Each of the Trust, the Guarantor and AmerUs Life, jointly and
severally, will indemnify and hold harmless the Underwriters against any losses,
claims, damages or liabilities, joint or several, to which the Underwriters may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or
27
<PAGE>
the Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Underwriters for any legal or other expenses
reasonably incurred by the Underwriters in connection with investigating or
defending any such action or claim as such expenses are incurred; PROVIDED,
HOWEVER, that neither the Trust, the Guarantor nor AmerUs Life shall be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the Trust
or the Guarantor by the Underwriters expressly for use therein.
(b) The Underwriters will indemnify and hold harmless the Trust, the
Guarantor and AmerUs Life against any losses, claims, damages or liabilities
to which the Trust, the Guarantor or AmerUs Life may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Trust or the Guarantor by the Underwriters
expressly for use therein; and will reimburse the Trust, the Guarantor or
AmerUs Life for any legal or other expenses reasonably incurred by the Trust,
the Guarantor or AmerUs Life in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying party
under such subsection, notify such indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the
28
<PAGE>
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a)
or (b) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Trust, the Guarantor and AmerUs Life on the one hand
and the Underwriters on the other from the offering of the Capital
Securities. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then
each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Trust, the
Guarantor and AmerUs Life on the one hand and the Underwriters on the other
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative benefits received
by the Trust, the Guarantor and AmerUs Life on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by
the Trust and the Guarantor bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Trust, the
Guarantor and AmerUs Life on the one hand or the Underwriters on the other
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Trust, the
Guarantor, AmerUs Life and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this subsection (d) were
determined by PRO RATA allocation or by any other method
29
<PAGE>
of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities
(or actions in respect thereof) referred to above in this subsection (d)
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), the
Underwriters shall not be required to contribute any amount in excess of the
amount by which the total price at which the Capital Securities were offered
to the public exceeds the amount of any damages which the Underwriters have
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The obligations of the Trust, the Guarantor and AmerUs Life under
this Section 8 shall be in addition to any liability which the Trust, the
Guarantor and AmerUs Life may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls the Underwriters
within the meaning of the Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the Underwriters
may otherwise have and shall extend, upon the same terms and conditions, to
each administrative trustee of the Trust, and each officer and director of
the Guarantor and AmerUs Life and to each person, if any, who controls the
Trust or the Guarantor within the meaning of the Act.
30
<PAGE>
9. The respective indemnities, agreements, representations, warranties
and other statements of the Trust, the Guarantor, AmerUs Life and the
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of the Underwriters or any controlling person of the
Underwriters, the Trust or the Guarantor or AmerUs Life, or any officer,
director, administrative trustee or controlling person of the Trust, the
Guarantor or AmerUs Life, and shall survive delivery of and payment for the
Capital Securities.
Anything herein to the contrary notwithstanding, the indemnity agreement of
the Trust, the Guarantor and AmerUs Life in subsection (a) of Section 8 hereof,
the representations and warranties in subsections (b) and (c) of Section 1
hereof and any representation or warranty as to the accuracy of the Registration
Statement or the Prospectus contained in any certificate furnished by the Trust,
the Guarantor or AmerUs Life pursuant to Section 7 hereof, insofar as they may
constitute a basis for indemnification for liabilities (other than payment by
the Trust, the Guarantor or AmerUs Life of expenses incurred or paid in the
successful defense of any action, suit or proceeding) arising under the Act,
shall not extend to the extent of any interest therein of a controlling person
or
31
<PAGE>
partner of the Underwriters who is a director, officer or controlling person of
the Trust, the Guarantor or AmerUs Life when the Registration Statement has
become effective, except in each case to the extent that an interest of such
character shall have been determined by a court of appropriate jurisdiction as
not against public policy as expressed in the Act. Unless in the opinion of
counsel for the Trust, the Guarantor or AmerUs Life the matter has been settled
by controlling precedent, the Trust, the Guarantor or AmerUs Life will, if a
claim for such indemnification is asserted, submit to a court of appropriate
jurisdiction the question of whether such interest is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
10. If for any reason, any Capital Securities are not delivered by or on
behalf of the Trust as provided herein, the Trust, the Guarantor and AmerUs
Life will reimburse the Underwriters for all out-of-pocket expenses approved
in writing by you, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale
and delivery of the Capital Securities not so delivered, but the Trust, the
Guarantor or AmerUs Life shall then be under no further liability to the
Underwriters except as provided in Sections 6 and 8 hereof.
11. All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to them at 85 Broad Street, New York, New
York 10004, Attention: Registration Department; and if to the Trust, the
Guarantor or AmerUs Life shall be delivered or sent by mail to the address of
the Trust, the Guarantor or AmerUs Life, respectively, set forth in the
Registration Statement, Attention: Secretary. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
12. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Trust, the Guarantor and AmerUs Life and, to the
extent provided in Sections 8 and 9 hereof, the officers, directors and
administrative trustees of the Trust, the Guarantor and AmerUs Life and each
person who controls the Trust, the Guarantor, AmerUs Life or the Underwriters,
and their respective heirs, executors, administrators, successors and assigns,
and no other person shall acquire or have any right under or by
32
<PAGE>
virtue of this Agreement. No purchaser of any of the Capital Securities from
the Underwriters shall be deemed a successor or assign by reason merely of such
purchase.
13. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
15. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
33
<PAGE>
If the foregoing is in accordance with your understanding, please sign
and return to us [10] counterparts hereof, and upon the acceptance hereof by
you, this letter and such acceptance hereof shall constitute a binding
agreement between the Underwriters, the Trust, the Guarantor and AmerUs Life.
Very truly yours,
AmerUs Capital I
By: AmerUs Life Holdings, Inc., as
Depositor
By: . . . . . . . . . . . . . . .
Name:
Title:
AmerUs Life Holdings, Inc.
By: . . . . . . . . . . . . . . .
Name:
Title:
AmerUs Life Insurance Company
By: . . . . . . . . . . . . . . .
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
By: . . . . . . . . . . . . . .
(Goldman, Sachs & Co.)
34
<PAGE>
ANNEX I
FORM OF ANNEX I DESCRIPTION OF COMFORT LETTER
FOR REGISTRATION STATEMENTS ON FORM S-1
Pursuant to Section 7(d) of the Underwriting Agreement, the Guarantor's
independent public accountants shall furnish letters to the Underwriters to the
effect that:
(i) They are independent certified public accountants with respect to
the Guarantor and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial forecasts
and/or pro forma financial information) examined by them and included in the
Prospectus or the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the Act and the related
published rules and regulations thereunder; and, if applicable, they have made a
review in accordance with standards established by the American Institute of
Certified Public Accountants of the unaudited consolidated interim financial
statements, selected financial data, pro forma financial information, financial
forecasts and/or condensed financial statements derived from audited financial
statements of the Guarantor for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been furnished to the
Underwriters (the "Underwriters");
(iii) They have made a review in accordance with standards established by
the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus as indicated in
their reports thereon copies of which have been separately furnished to the
Underwriters and on the basis of specified procedures including inquiries of
officials of the Guarantor who have responsibility for financial and accounting
matters regarding whether the unaudited condensed consolidated financial
statements referred to in paragraph (vi)(A)(i) below comply as to form in all
material respects with the applicable accounting requirements of the Act and the
related published rules and regulations, nothing came to their attention that
cause them to believe that the unaudited condensed consolidated financial
statements do not comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Guarantor for
the five most recent fiscal years included in the Prospectus agrees with the
corresponding amounts (after restatements where applicable) in the audited
consolidated financial statements with respect to three most recent fiscal years
and the unaudited consolidated financial statements for the two prior fiscal
years;
(v) They have compared the information in the Prospectus under selected
captions with the disclosure requirements of Regulation S-K and on the basis of
limited procedures
<PAGE>
specified in such letter nothing came to their attention as a result of the
foregoing procedures that caused them to believe that this information does not
conform in all material respects with the disclosure requirements of Items 301,
302, 402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an examination
in accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information referred to
below, a reading of the latest available interim financial statements of the
Guarantor and its subsidiaries, inspection of the minute books of the Guarantor
and its subsidiaries since the date of the latest audited financial statements
included in the Prospectus, inquiries of officials of the Guarantor and its
subsidiaries responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came to
their attention that caused them to believe that:
(A) (i) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the related published rules and regulations, or (ii) any
material modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus for
them to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with
the basis for the corresponding amounts in the audited consolidated
financial statements included in the Prospectus;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived any unaudited condensed
financial statements referred to in Clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in Clause (B) were not determined on a
basis substantially consistent with the basis for the audited
consolidated financial statements included in the Prospectus;
(D) any unaudited pro forma consolidated condensed financial
statements included in the Prospectus do not comply as to form in
all material respects with the applicable accounting requirements of
the Act and the published rules and regulations thereunder or the
pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise
of options and stock appreciation
2
<PAGE>
rights, upon earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on the
date of the latest financial statements included in the Prospectus)
or any increase in the consolidated long-term debt of the Guarantor
and its subsidiaries, or any decreases in consolidated net current
assets or stockholders' equity or other items specified by the
Underwriters, or any increases in any items specified by the
Underwriters, in each case as compared with amounts shown in the
latest balance sheet included in the Prospectus, except in each case
for changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter;
and
(F) for the period from the date of the latest financial statements
included in the Prospectus to the specified date referred to in
Clause (E) there were any decreases in consolidated net revenues or
operating profit or the total or per share amounts of consolidated
net income or other items specified by the Underwriters, or any
increases in any items specified by the Underwriters, in each
case as compared with the comparable period of the preceding year
and with any other period of corresponding length specified by the
Underwriters, except in each case for decreases or increases
which the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(vii) In addition to the examination referred to in their report(s)
included in the Prospectus and the limited procedures, inspection of minute
books, inquiries and other procedures referred to in paragraphs (iii) and (vi)
above, they have carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards, with
respect to certain amounts, percentages and financial information specified by
the Underwriters, which are derived from the general accounting records of
the Guarantor and its subsidiaries, which appear in the Prospectus, or in Part
II of, or in exhibits and schedules to, the Registration Statement specified by
the Underwriters, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Guarantor and its
subsidiaries and have found them to be in agreement.
3
<PAGE>
[Exhibit 3.6]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
TRUST AGREEMENT
among
AMERUS LIFE HOLDINGS, INC., as Depositor,
WILMINGTON TRUST COMPANY.,
as Property Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of _______________, 1997
AMERUS CAPITAL I
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
AmerUs Capital I
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
- --------------- --------
Section 310(a)(1) . . . . . . . . . . . . . . . . . . 8.07
(a)(2) . . . . . . . . . . . . . . . . . . 8.07
(a)(3) . . . . . . . . . . . . . . . . . . 8.09
(a)(4) . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . 8.08
Section 311(a) . . . . . . . . . . . . . . . . . . 8.13
(b) . . . . . . . . . . . . . . . . . . 8.13
Section 312(a) . . . . . . . . . . . . . . . . . . 5.07
(b) . . . . . . . . . . . . . . . . . . 5.07
(c) . . . . . . . . . . . . . . . . . . 5.07
Section 313(a) . . . . . . . . . . . . . . . . . . 8.14(a)
(a)(4) . . . . . . . . . . . . . . . . . . 8.14(b)
(b) . . . . . . . . . . . . . . . . . . 8.14(b)
(c) . . . . . . . . . . . . . . . . . . 8.14(a)
(d) . . . . . . . . . . . . . . . . . . 8.14(a),8.14(b)
Section 314(a) . . . . . . . . . . . . . . . . . . 8.15
(b) . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . 8.16
(c)(2) . . . . . . . . . . . . . . . . . . 8.16
(c)(3) . . . . . . . . . . . . . . . . . . 8.16
(d) . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . 1.01
Section 315(a) . . . . . . . . . . . . . . . . . . 8.01
(b) . . . . . . . . . . . . . . . . . . 8.02, 8.14(b)
(c) . . . . . . . . . . . . . . . . . . 8.01(a)
(d) . . . . . . . . . . . . . . . . . . 8.01, 8.03
(e) . . . . . . . . . . . . . . . . . . Not Applicable
______________
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Trust Agreement.
<PAGE>
Section 316(a) . . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(A) . . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(B) . . . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . . Not Applicable
Section 317(a)(1) . . . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . 5.09
Section 318(a) . . . . . . . . . . . . . . . . . 10.10
______________
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Trust Agreement.
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
Defined Terms
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
Establishment of the Trust
Section 2.01. Name. . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.02. Office of the Property Trustee; Principal Place
of Business. . . . . . . . . . . . . . . . . . . . . 10
Section 2.03. Initial Contribution of Trust Property;
Organizational Expenses. . . . . . . . . . . . . . . 10
Section 2.04. Issuance of the Capital Securities. . . . . . . . . . . 10
Section 2.05. Purchase of Debentures; Issuance of the Common
Securities . . . . . . . . . . . . . . . . . . . . . 10
Section 2.06. Declaration of Trust. . . . . . . . . . . . . . . . . . 11
Section 2.07. Authorization to Enter into Certain Transactions. . . . 11
Section 2.08. Assets of Trust . . . . . . . . . . . . . . . . . . . . 15
Section 2.09. Title to Trust Property . . . . . . . . . . . . . . . . 15
ARTICLE III
Payment Account
Section 3.01. Payment Account . . . . . . . . . . . . . . . . . . . . 15
ARTICLE IV
Distributions; Redemption
Section 4.01. Distributions . . . . . . . . . . . . . . . . . . . . . 16
Section 4.02. Redemption. . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.03. Subordination of Common Securities. . . . . . . . . . . 19
Section 4.04. Payment Procedures. . . . . . . . . . . . . . . . . . . 19
Section 4.05. Tax Returns and Reports . . . . . . . . . . . . . . . . 19
Section 4.06. Payment of Taxes, Duties, Etc. of the Trust . . . . . . 20
Section 4.07. Payments under Indenture. . . . . . . . . . . . . . . . 20
-i-
<PAGE>
Page
----
ARTICLE V
Trust Securities Certificates
Section 5.01. Initial Ownership . . . . . . . . . . . . . . . . . . . 21
Section 5.02. The Trust Securities Certificates . . . . . . . . . . . 21
Section 5.03. Delivery of Trust Securities Certificates . . . . . . . 21
Section 5.04. Registration of Transfer and Exchange of Capital
Securities Certificates . . . . . . . . . . . . . . . 21
Section 5.05. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates. . . . . . . . . . . . . . . . . . . . . 22
Section 5.06. Persons Deemed Securityholders. . . . . . . . . . . . . 22
Section 5.07. Access to List of Securityholders' Names and
Addresses. . . . . . . . . . . . . . . . . . . . . . 23
Section 5.08. Maintenance of Office or Agency . . . . . . . . . . . . 23
Section 5.09. Appointment of Paying Agent . . . . . . . . . . . . . . 23
Section 5.10. Ownership of Common Securities by Depositor . . . . . . 24
Section 5.11. Book-Entry Capital Securities Certificates; Common
Securities Certificate. . . . . . . . . . . . . . . . 24
Section 5.12. Notices to Clearing Agency. . . . . . . . . . . . . . . 25
Section 5.13. Definitive Capital Securities Certificates. . . . . . . 25
Section 5.14. Rights of Securityholders . . . . . . . . . . . . . . . 26
ARTICLE VI
Acts of Securityholders; Meetings; Voting
Section 6.01. Limitations on Voting Rights. . . . . . . . . . . . . . 28
Section 6.02. Notice of Meetings. . . . . . . . . . . . . . . . . . . 29
Section 6.03. Meetings of Capital Securityholders . . . . . . . . . . 29
Section 6.04. Voting Rights . . . . . . . . . . . . . . . . . . . . . 29
Section 6.05. Proxies, etc. . . . . . . . . . . . . . . . . . . . . . 29
Section 6.06. Securityholder Action by Written Consent. . . . . . . . 30
Section 6.07. Record Date for Voting and Other Purposes . . . . . . . 30
Section 6.08. Acts of Securityholders . . . . . . . . . . . . . . . . 30
Section 6.09. Inspection of Records . . . . . . . . . . . . . . . . . 31
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ARTICLE VII
Representations and Warranties
Section 7.01. Representations and Warranties of the Bank and
the Property Trustee . . . . . . . . . . . . . . . . 32
Section 7.02. Representations and Warranties of Parent. . . . . . . . 33
ARTICLE VIII
The Trustees
Section 8.01. Certain Duties and Responsibilities . . . . . . . . . . 33
Section 8.02. Certain Notices . . . . . . . . . . . . . . . . . . . . 35
Section 8.03. Certain Rights of Property Trustee. . . . . . . . . . . 35
Section 8.04. Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . . . . 37
Section 8.05. May Hold Securities . . . . . . . . . . . . . . . . . . 37
Section 8.06. Compensation; Indemnity; Fees . . . . . . . . . . . . . 38
Section 8.07. Corporate Property Trustee Required; Eligibility
of Trustees. . . . . . . . . . . . . . . . . . . . . 38
Section 8.08. Conflicting Interests . . . . . . . . . . . . . . . . . 39
Section 8.09. Co-Trustees and Separate Trustee. . . . . . . . . . . . 39
Section 8.10. Resignation and Removal; Appointment of Successor . . . 40
Section 8.11. Acceptance of Appointment by Successor. . . . . . . . . 42
Section 8.12. Merger, Conversion, Consolidation or Succession to
Business of a Trustee . . . . . . . . . . . . . . . . 43
Section 8.13. Preferential Collection of Claims Against
Depositor or Trust . . . . . . . . . . . . . . . . . 43
Section 8.14. Reports by Property Trustee . . . . . . . . . . . . . . 44
Section 8.15. Reports to the Property Trustee . . . . . . . . . . . . 44
Section 8.16. Evidence of Compliance with Conditions Precedent. . . . 45
Section 8.17. Number of Trustees. . . . . . . . . . . . . . . . . . . 45
Section 8.18. Delegation of Power . . . . . . . . . . . . . . . . . . 45
ARTICLE IX
Termination and Liquidation
Section 9.01. Termination Upon Expiration Date. . . . . . . . . . . . 46
Section 9.02. Early Termination . . . . . . . . . . . . . . . . . . . 46
Section 9.03. Termination . . . . . . . . . . . . . . . . . . . . . . 46
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Section 9.04. Liquidation . . . . . . . . . . . . . . . . . . . . . . 46
Section 9.05. Merger, Consolidation, Amalgamation or Replacement
of the Trust. . . . . . . . . . . . . . . . . . . . . 48
Section 10.01. Expense Agreement. . . . . . . . . . . . . . . . . . . 49
Section 10.02. Limitation of Rights of Securityholders. . . . . . . . 49
Section 10.03. Amendment. . . . . . . . . . . . . . . . . . . . . . . 49
Section 10.04. Separability . . . . . . . . . . . . . . . . . . . . . 50
SECTION 10.05. GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . 51
Section 10.06. Payments Due on Non-Business Day . . . . . . . . . . . 51
Section 10.07. Successors . . . . . . . . . . . . . . . . . . . . . . 51
Section 10.08. Headings . . . . . . . . . . . . . . . . . . . . . . . 51
Section 10.09. Reports, Notices and Demands . . . . . . . . . . . . . 51
Section 10.10. Agreement Not to Petition. . . . . . . . . . . . . . . 52
Section 10.11. Trust Indenture Act; Conflict with Trust
Indenture Act . . . . . . . . . . . . . . . . . . . 52
Section 10.12. Rights Under Indenture . . . . . . . . . . . . . . . . 52
Section 10.13. Effectiveness. . . . . . . . . . . . . . . . . . . . . 52
Exhibit A Certificate of Trust
Exhibit B Form of Certificate Depository Agreement
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Capital Securities Certificate
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of _______________,
1997, among (i) AmerUs Life Holdings, Inc., an Iowa corporation (the
"Depositor" or "Parent"), (ii) Wilmington Trust Company, a banking
corporation duly organized and existing under the laws of Delaware, as
trustee (the "Property Trustee" and, in its separate corporate capacity and
not in its capacity as Property Trustee, the "Bank"), (iii) Michael E.
Sproule, an individual, Michael G. Fraizer, an individual and James A.
Smallenberger, an individual, each of whose address is c/o AmerUs Life
Holdings, Inc., 418 Sixth Avenue, Des Moines, Iowa 50309-2407 (each an
"Administrative Trustee" and collectively the "Administrative Trustees") (the
Property Trustee and the Administrative Trustees being referred to
collectively as the "Trustees") and (iv) the several Holders, as hereinafter
defined.
WITNESSETH:
WHEREAS, the Depositor and the Property Trustee have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by the entering into of that certain Trust Agreement, dated as of
October 4, 1996 (the "Original Trust Agreement"), and by the execution and
filing by the Property Trustee with the Secretary of State of the State of
Delaware of the Certificate of Trust, filed on October 4, 1996, attached as
Exhibit A; and
WHEREAS, the Depositor and the Property Trustee desire to amend and
restate the Original Trust Agreement in its entirety as set forth herein to
provide for, among other things, (i) the acquisition by the Trust from the
Depositor of all of the right, title and interest in the Debentures, (ii) the
issuance of the Common Securities by the Trust to the Depositor, (iii) the
issuance and sale of the Capital Securities by the Trust pursuant to the
Underwriting Agreement and (iv) the appointment of the Administrative Trustees;
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party, for the benefit of the other party and
for the benefit of the Securityholders, hereby amends and restates the Original
Trust Agreement in its entirety and agrees as follows:
ARTICLE I
Defined Terms
Section 1.01. DEFINITIONS. For all purposes of this Trust Agreement,
except as otherwise expressly provided or unless the context otherwise requires:
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(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) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"ACT" has the meaning specified in Section 6.08.
"ADDITIONAL AMOUNT" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest (as
defined in the Indenture) paid by the Depositor on a Like Amount of Debentures
for such period.
"ADDITIONAL SUMS" has the meaning specified in Section 1005 of the
Indenture.
"ADMINISTRATIVE TRUSTEE" means each of the individuals identified as
an "Administrative Trustee" in the preamble to this Trust Agreement, solely in
his capacity as Administrative Trustee of the Trust formed and continued
hereunder and not in his individual capacity, or such Administrative Trustee's
successor in interest in such capacity, or any successor trustee appointed as
herein provided.
"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.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
transaction involving a Book-Entry Capital Security, the rules and procedures
of the Clearing Agency for such Book-Entry Capital Security, in each case to
the extent applicable to such transaction and as in effect from time to time.
"BANK" has the meaning specified in the preamble to this Trust
Agreement.
"BANKRUPTCY EVENT" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjudication
or composition of or in respect of such Person under any applicable Federal
or State bankruptcy, insolvency, reorganization or other similar law, or
appointing a receiver, liquidator, assignee, trustee sequestrator or
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other similar official of such Person or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a period
of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or of the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law, or the consent by it to the filing of such petition or to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator or
similar official of such Person or of any substantial part of its property
or the admission by it in writing of its inability to pay its debts
generally as they become due and its willingness to be adjudicated as a
bankrupt, or the making by it of an assignment for the benefit of
creditors, or the taking of action by such Person in furtherance of any
such action.
"BANKRUPTCY LAWS" has the meaning specified in Section 10.10.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors or a duly authorized committee
thereof or officers of the Depositor to which authority to act on behalf of
the Board of Directors has been delegated and to be in full force and effect
on the date of such certification, and delivered to the Property Trustee.
"BOOK ENTRY CAPITAL SECURITIES CERTIFICATE" means a Capital
Securities Certificate, evidencing ownership of Book Entry Capital Securities.
"BOOK-ENTRY CAPITAL SECURITY" means a Capital Security, the
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 5.11.
"BUSINESS DAY" means a day other than (a) a Saturday or Sunday, (b) a
day on which banking institutions in The City of New York are authorized or
obligated by law or executive order to remain closed, or (c) a day on which the
Property Trustee's Corporate Trust Office or the Debenture Trustee's Corporate
Trust Office is closed for business.
"CAPITAL SECURITIES CERTIFICATE" means a certificate evidencing
ownership of Capital Securities, substantially in the form attached as
Exhibit D.
"CAPITAL SECURITY" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount of $1,000 and having rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"CERTIFICATE DEPOSITORY AGREEMENT" means the agreement among the
Trust, the Depositor and The Depository Trust Company, as the initial Clearing
Agency, dated as of the Closing Date, relating to the Capital Securities
Certificates, substantially in the form attached as Exhibit B, as the same may
be amended and supplemented from time to time.
"CLEARING AGENCY" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository Trust Company will be the initial Clearing Agency.
"CLEARING AGENCY PARTICIPANT" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
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"CLOSING DATE" means the First Time of Delivery as defined in the
Underwriting Agreement, which date is also the date of execution and delivery of
this Trust Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended.
"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.
"COMMON SECURITIES CERTIFICATE" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"COMMON SECURITY" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount of $1,000 and having the
rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.
"CORPORATE TRUST OFFICE" means the principal office of either the
Property Trustee or the Trustee named in the Indenture. So long as
Wilmington Trust Company serves in both capacities, such principal office is
located in Wilmington, Delaware.
"DEBENTURE EVENT OF DEFAULT" means an "Event of Default" as defined in
the Indenture.
"DEBENTURE REDEMPTION DATE" means "Redemption Date" as defined in the
Indenture.
"DEBENTURE TRUSTEE" means Wilmington Trust Company, a banking
corporation duly organized and existing under the laws of the State of Delaware.
"DEBENTURES" means the $75,000,000 aggregate principal amount (or up
to $86,250,000 aggregate principal amount if and to the extent the
overallotment option granted by the Trust to Goldman, Sachs & Co. of the
Capital Securities is exercised) of the Parent's [_____%] Junior Subordinated
Debentures, issued pursuant to the Indenture.
"DEFINITIVE CAPITAL SECURITIES CERTIFICATES" means either or both
(as the context requires) of (a) Capital Securities Certificates issued as
Book-Entry Capital Securities Certificates as provided in Section 5.11(a) and
(b) Capital Securities Certificates issued in certificated, fully registered
form as provided in Section 5.13.
"DELAWARE BUSINESS TRUST ACT" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. Section 3801, ET SEQ., as it may be amended from time
to time.
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"DEPOSITOR" has the meaning specified in the preamble to this Trust
Agreement and includes AmerUs Life Holdings, Inc. in its capacity as Holder of
the Common Securities.
"DIRECT ACTION" has the meaning specified in Section 5.14(c).
"DISTRIBUTION DATE" has the meaning specified in Section 4.01(a).
"DISTRIBUTIONS" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"EVENT OF DEFAULT" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Property Trustee in the payment of any Distribution
when it becomes due and payable, and continuation of such default for a
period of 30 days; or
(c) default by the Property Trustee in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Trustees in this Trust Agreement (other
than a covenant or warranty a default in the performance of which or the
breach of which is dealt with in clause (b) or (c), above) and continuation
of such default or breach for a period of 60 days after there has been
given, by registered or certified mail, to the defaulting Trustee or
Trustees by the Holders of at least 25% in aggregate Liquidation Amount of
the Outstanding Capital Securities a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee and the failure by the Depositor to appoint a successor Property
Trustee within 60 days thereof.
"EXPENSE AGREEMENT" means the Agreement as to Expenses and Liabilities
between the Parent and the Trust, substantially in the form attached as
Exhibit A to the Indenture, as amended from time to time.
"GUARANTEE" means the Guarantee Agreement executed and delivered by
the Parent and Wilmington Trust Company, a banking corporation, as trustee,
contemporaneously with the execution and delivery of this Trust Agreement, for
the benefit of the Holders of the Capital Securities, as amended from time to
time.
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"INDENTURE" means the Junior Subordinated Indenture, dated as of
_______________, 1997, between the Parent and the Debenture Trustee, as
trustee, as amended or supplemented from time to time.
"LIEN" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"LIKE AMOUNT" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to the
principal amount of Debentures to be contemporaneously redeemed in accordance
with the Indenture and the proceeds of which will be used to pay the
Redemption Price of such Trust Securities, (b) with respect to a distribution
of Debentures to Holders of Trust Securities in connection with a dissolution
or liquidation of the Trust, Debentures having a principal amount equal to
the Liquidation Amount of the Trust Securities of the Holder to whom such
Debentures are distributed, and (c) with respect to any distribution of
Additional Amounts to Holders of Trust Securities, Debentures having a
principal amount equal to the Liquidation Amount of the Trust Securities in
respect of which such distribution is made.
"LIQUIDATION AMOUNT" means the stated amount of $1,000 per Trust
Security.
"LIQUIDATION DATE" means the date of dissolution, winding-up or
termination and liquidation of the Trust pursuant to Section 9.04(a).
"LIQUIDATION DISTRIBUTION" has the meaning specified in Section
9.04(d).
"MAJORITY IN LIQUIDATION AMOUNT OF THE CAPITAL SECURITIES" or
"MAJORITY IN LIQUIDATION AMOUNT OF THE COMMON SECURITIES" means, except as
provided by the Trust Indenture Act, Capital Securities or Common Securities,
as the case may be, representing more than 50% of the aggregate Liquidation
Amount of all then Outstanding Capital Securities or Common Securities, as
the case may be.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Depositor, and delivered to the appropriate Trustee. One of
the officers signing an Officers' Certificate given pursuant to Section 8.16
shall be the principal executive, financial or accounting officer of the
Depositor. Any Officers' Certificate delivered with respect to compliance with
a condition or covenant provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
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"OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee or the Depositor, and may be an
employee of any thereof, and who shall be acceptable to the Property Trustee.
"ORIGINAL TRUST AGREEMENT" has the meaning specified in the recitals
to this Trust Agreement.
"OUTSTANDING", when used with respect to Trust Securities, means,
as of the date of determination, all Trust Securities theretofore executed,
authenticated and delivered under this Trust Agreement, EXCEPT:
(a) Trust Securities theretofore canceled by the Administrative
Trustees or delivered to the Administrative Trustees for cancellation;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee
or any Paying Agent; PROVIDED that, if such Trust Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Trust Agreement; and
(c) Trust Securities that have been paid or in exchange for or in
lieu of which other Capital Securities have been executed,
authenticated and delivered pursuant to this Trust Agreement;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Capital Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Capital Securities owned by the Depositor, any Trustee or any
Affiliate of the Depositor or any Trustee shall be disregarded and deemed not
to be Outstanding, except that (a) in determining whether any Trustee shall
be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Capital Securities which such
Trustee knows to be so owned shall be so disregarded and (b) the foregoing
shall not apply at any time when all of the Outstanding Capital Securities
are owned by the Depositor, one or more of the Trustees and/or any such
Affiliate. Capital Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Administrative Trustees the pledgee's right so to act with respect to
such Capital Securities and that the pledgee is not the Depositor or any
Affiliate of the Depositor.
"OWNER" means each Person who is the beneficial owner of a
Book-Entry Capital Securities Certificate as reflected in the records of
the Clearing Agency or, if a Clearing Agency Participant is not the Owner,
then as reflected in the records of a Person maintaining an account with
such Clearing Agency (directly or indirectly, in accordance with the rules
of such Clearing Agency).
"PARENT" has the meaning specified in the preamble to this Trust
Agreement.
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"PAYING AGENT" means any paying agent or co-paying agent appointed
pursuant to Section 5.09 and shall initially be the Bank.
"PAYMENT ACCOUNT" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee with the Bank in its corporate
trust department for the benefit of the Securityholders in which all amounts
paid in respect of the Debentures will be held and from which the Property
Trustee shall make payments to the Securityholders in accordance with
Section 4.01.
"PERSON" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"PROPERTY TRUSTEE" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust Agreement
solely in its capacity as Property Trustee of the Trust heretofore formed and
continued hereunder and not in its individual capacity, or its successor in
interest in such capacity, or any successor property trustee appointed as herein
provided.
"REDEMPTION DATE" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; PROVIDED that each Debenture Redemption Date shall be a Redemption
Date for a Like Amount of Trust Securities.
"REDEMPTION PRICE" means, with respect to any date fixed for
redemption of any Trust Security, the Liquidation Amount of such Trust Security,
plus accumulated and unpaid Distributions to such date, plus the amount of the
premium, if any, paid by the Depositor upon the concurrent redemption of a Like
Amount of Debentures allocated on a pro rata basis (based on Liquidation
Amounts) among the Trust Securities.
"RELEVANT TRUSTEE" shall have the meaning specified in Section 8.10.
"SECURITIES REGISTER" and "SECURITIES REGISTRAR" have the respective
meanings specified in Section 5.04.
"SECURITYHOLDER" or "HOLDER" means a Person in whose name a Trust
Security or Securities is registered in the Securities Register; any such Person
shall be deemed to be a
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beneficial owner within the meaning of the Delaware Business Trust Act;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
amount of Capital Securities have voted on any matter provided for in this
Trust Agreement, then for the purpose of any such determination, so long as
Definitive Capital Securities Certificates have not been issued, the term
Securityholders or Holders as used herein shall refer to Owners.
"TRANSFER AGENT" shall be the person specified in or pursuant to
Section 5.04.
"TRUST" means the Delaware business trust created and continued hereby
and identified on the cover page to this Trust Agreement.
"TRUST AGREEMENT" means this Amended and Restated Trust Agreement, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including all exhibits hereto, including, for all
purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Trust Agreement and any such modification, amendment or
supplement, respectively.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; PROVIDED, HOWEVER,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"TRUST PROPERTY" means (a) the Debentures, (b) any cash on deposit in,
or owing to, the Payment Account, (c) all proceeds and rights in respect of the
foregoing and any other property and assets for the time being held or deemed to
be held by the Property Trustee pursuant to the trusts of this Trust Agreement
and (d) the rights of the Property Trustee under the Guarantee.
"TRUST SECURITY" means any one of the Common Securities or the
Capital Securities.
"TRUST SECURITIES CERTIFICATE" means any one of the Common Securities
Certificates or the Capital Securities Certificates.
"TRUSTEES" has the meaning specified in the preamble to this Trust
Agreement.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement, dated as of
_______________, 1997, among the Trust, the Parent, AmerUs Life Insurance
Company and Goldman, Sachs & Co.
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ARTICLE II
Establishment of the Trust
Section 2.01. NAME. The Trust created and continued hereby shall be
known as "AmerUs Capital I," as such name may be modified from time to time by
the Administrative Trustees following written notice to the Holders of Trust
Securities and the other Trustees, in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued.
Section 2.02. OFFICE OF THE PROPERTY TRUSTEE; PRINCIPAL PLACE OF
BUSINESS. The office of the Property Trustee in the State of Delaware is Rodney
Square North, 1100 North Market Street, Wilmington, Delaware 19890, Attention:
Corporate Trust Administration, or such other address in the State of Delaware
as the Property Trustee may designate by written notice to the Securityholders
and the Depositor. The principal place of business of the Trust is c/o AmerUs
Life Holdings, Inc., 418 Sixth Avenue, Des Moines, Iowa 50309-2407.
Section 2.03. INITIAL CONTRIBUTION OF TRUST PROPERTY; ORGANIZATIONAL
EXPENSES. The Property Trustee acknowledges receipt in trust from the Depositor
in connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any Trustee,
promptly reimburse such Trustee for any such expenses paid by such Trustee. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
Section 2.04. ISSUANCE OF THE CAPITAL SECURITIES. On
_______________, 1997 the Depositor, both on its own behalf and on behalf of
the Trust and pursuant to the Original Trust Agreement, executed and
delivered the Underwriting Agreement. Contemporaneously with the execution
and delivery of this Trust Agreement, an Administrative Trustee, on behalf of
the Trust, shall execute and deliver to the underwriters named in the
Underwriting Agreement Capital Securities Certificates, registered in the
name of the nominee of the initial Clearing Agency, in an aggregate amount of
75,000 Capital Securities having an aggregate Liquidation Amount of
$75,000,000, against receipt of the aggregate purchase price of such
Capital Securities of $75,000,000, which amount the Administrative Trustee
shall promptly deliver to the Property Trustee. In the event and to the
extent the overallotment option granted by the Trust pursuant to the
Underwriting Agreement is exercised by such underwriters, an Administrative
Trustee, on behalf of the Trust, shall execute and deliver to such
underwriters Capital Securities Certificates, registered in the name of the
nominee of the initial Clearing Agency, in an aggregate amount of up to
11,250 Capital Securities having an aggregate Liquidation Amount of up to
$11,250,000, against receipt of the aggregate purchase price of such
Capital Securities of up to $11,250,000 which amount the Administrative
Trustee shall promptly deliver to the Property Trustee, on the date specified
pursuant to the Underwriting Agreement.
Section 2.05. PURCHASE OF DEBENTURES; ISSUANCE OF THE COMMON
SECURITIES. Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative
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Trustee, on behalf of the Trust, shall purchase from the Depositor
Debentures, registered in the name of the Trust and having an aggregate
principal amount equal to $75,000,000, and, in satisfaction of the purchase
price for such Debentures, (w) the Property Trustee, on behalf of the Trust,
shall deliver to the Depositor the sum of $75,000,000, and (x)
contemporaneously therewith, an Administrative Trustee, on behalf of the
Trust, shall execute and deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, in an aggregate amount
of 2,250 Common Securities having an aggregate Liquidation Amount of
$2,250,000. In the event the overallotment option granted by the Trust
with respect to the Capital Securities pursuant to the Underwriting Agreement
is exercised by the underwriters named therein, an Administrative Trustee, on
behalf of the Trust, shall purchase from the Depositor Debentures, registered
in the name of the Trust and having an aggregate principal amount up to
$11,250,000, and, in satisfaction of the purchase price for such
Debentures, (y) the Property Trustee, on behalf of the Trust, shall deliver
to the Depositor an amount equal to [_____%] of the aggregate principal
amount of Debentures being purchased, and (z) contemporaneously therewith, an
Administrative Trustee, on behalf of the Trust, shall execute and deliver to
the Depositor Common Securities Certificates, registered in the name of the
Depositor, in an aggregate amount (determined on a pro rata basis to the
extent the overallotment option is exercised) of up to 338 Common
Securities having an aggregate Liquidation Amount of up to $338,000.
Section 2.06. DECLARATION OF TRUST. The exclusive purposes and
functions of the Trust are (a) to issue and sell Trust Securities and use the
proceeds from such sale to acquire the Debentures, and (b) to engage in those
activities necessary, convenient or incidental thereto. The Depositor hereby
appoints the Trustees as trustees of the Trust, to have all the rights, powers
and duties set forth herein and the Trustees hereby accept such appointment.
The Property Trustee hereby declares that it will hold the Trust Property in
trust upon and subject to the conditions set forth herein for the benefit of the
Trust and the Securityholders. The Administrative Trustees shall have all
rights, powers and duties set forth herein and in accordance with applicable law
with respect to accomplishing the purposes of the Trust.
Section 2.07. AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS.
(a) The Property Trustee and the Administrative Trustees shall conduct
the affairs of the Trust in accordance with the terms of this Trust Agreement.
Subject to the limitations set forth in paragraph (b) of this Section, and in
accordance with the following provisions (i) and (ii), the Property Trustee and
the Administrative Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to the Trustees
under this Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
(i) As among the Trustees, the Administrative Trustees shall have the
power, duty and authority to act on behalf of the Trust with respect to the
following matters:
(A) the issuance and sale of the Trust Securities;
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(B) to cause the Trust to enter into, and to execute, deliver
and perform on behalf of the Trust, the Expense Agreement and the
Certificate Depository Agreement and such other agreements as may be
necessary or desirable in connection with the purposes and function of
the Trust;
(C) assisting in any registration of the Capital Securities
under the Securities Act of 1933, as amended, and under state
securities or blue sky laws, and the qualification of this Trust
Agreement under the Trust Indenture Act;
(D) assisting in any quotation or listing of the Capital
Securities upon the Nasdaq National Market or such securities exchange
or exchanges as shall be determined by the Depositor and the
registration of the Capital Securities under the Securities Exchange
Act of 1934, as amended, and the preparation and filing of all
periodic and other reports and other documents pursuant to the
foregoing;
(E) the sending of notices (other than notices of default) and
other information regarding the Trust Securities and the Debentures to
the Securityholders in accordance with this Trust Agreement;
(F) the consent to the appointment of a Paying Agent,
authenticating agent, Securities Registrar and Transfer Agent in
accordance with this Trust Agreement (which consent shall not be
unreasonably withheld);
(G) registering transfers of the Trust Securities in accordance
with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust and the preparation,
execution and filing of the certificate of cancellation with the
Secretary of State of the State of Delaware;
(I) unless otherwise determined by the Property Trustee or the
Holders of at least a majority of Liquidation Amount of the Capital
Securities, or as otherwise required by the Delaware Business Trust
Act or the Trust Indenture Act, to execute on behalf of the Trust
(either acting alone or together with any or all of the Administrative
Trustees) any documents that the Administrative Trustees have the
power to execute pursuant to this Trust Agreement; and
(J) the taking of any action incidental to the foregoing as the
Trustees may from time to time determine is necessary or advisable to
give effect to the terms of this Trust Agreement and protect and
conserve the Trust Property for the benefit of the Securityholders
(without consideration of the effect of any such action on any
particular Securityholder).
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(ii) As among the Trustees, the Property Trustee shall have the
power, duty and authority to act on behalf of the Trust with respect to the
following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any other payments
made in respect of the Debentures in the Payment Account;
(D) the distribution through the Paying Agent of amounts
distributable to the Securityholders in respect of the Trust
Securities;
(E) the exercise of all of the rights, powers and privileges of
a holder of the Debentures;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the
Securityholders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with
the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust and the preparation,
execution and filing of the certificate of cancellation with the
Secretary of State of the State of Delaware;
(I) after an Event of Default (other than under paragraph (b),
(c), (d) or (e) of the definition of such term if such Event of
Default is by or with respect to the Property Trustee) the taking
of any action incidental to the foregoing as the Property Trustee may
from time to time determine is necessary or advisable to give effect
to the terms of this Trust Agreement and protect and conserve the Trust
Property for the benefit of the Securityholders (without consideration
of the effect of any such action on any particular Securityholder); and
(J) any of the duties, liabilities, powers or the authority of
the Administrative Trustees set forth in Section 2.7(a)(i)(E) and (I)
herein; and in the event of a conflict between the action of the
Administrative Trustees and the action of the Property Trustee, the
action of the Property Trustee shall prevail.
(b) So long as this Trust Agreement remains in effect, the Trust (or
the Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees and the Trust shall not (i) acquire any
investments or engage in any activities not authorized by this Trust Agreement,
(ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise
dispose of any of the
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Trust Property or interests therein, including to Securityholders, except as
expressly provided herein, (iii) take any action that would result in more than
an insubstantial risk that the Trust would fail or cease to qualify as a
"grantor trust" for United States Federal income tax purposes, (iv) incur any
indebtedness for borrowed money or issue any other debt or (v) take or consent
to any action that would result in the placement of a Lien on any of the Trust
Property. The Administrative Trustees shall defend all claims and demands of
all Persons at any time claiming any Lien on any of the Trust Property adverse
to the interest of the Trust or the Securityholders in their capacity as
Securityholders.
(c) In connection with the issue and sale of the Capital Securities,
the Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Trust Agreement are hereby ratified and confirmed in all respects as actions of
the Trust):
(i) to prepare for filing by the Trust with the Commission and to
execute on behalf of the Trust a registration statement on Form S-1 in
relation to the Capital Securities, including any amendments thereto and
to take any action necessary or desirable to sell the Capital Securities
in a transaction pursuant thereto;
(ii) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Capital Securities and to
do any and all such acts, other than actions which must be taken by or on
behalf of the Trust, and advise the Trustees of actions they must take on
behalf of the Trust, and prepare for execution and filing any documents to
be executed and filed by the Trust or on behalf of the Trust, as the
Depositor deems necessary or advisable in order to comply with the
applicable laws of any such States and in connection with the sale of the
Capital Securities;
(iii) to prepare for filing by the Trust any application to the
Nasdaq National Market System ("Nasdaq") or any national stock exchange
for quotation or listing upon notice of issuance, as applicable, of any
Capital Securities;
(iv) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
Capital Securities under Section 12(b) or 12(g) of the Exchange Act,
including any amendments thereto;
(v) to negotiate the terms of, and execute and deliver, the
Underwriting Agreement providing for the sale of the Capital Securities;
and
(vi) to take any other actions necessary or desirable to carry out
any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not (i) be deemed to
be an "investment company" required to be registered under the
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Investment Company Act of 1940, as amended, or (ii) fail or cease to qualify
as a grantor trust for United States Federal income tax purposes and so that
the Debentures will be treated as indebtedness of the Depositor for United
States Federal income tax purposes. In this connection, the Depositor and
the Administrative Trustees are authorized to take any action, not
inconsistent with applicable law, the Certificate of Trust or this Trust
Agreement, that each of the Depositor and the Administrative Trustees
determines in its discretion to be necessary or desirable for such purposes
as long as such action does not adversely affect in any material respect the
interests of the Holders of the Capital Securities. In no event shall the
Trustees be liable to the Trust or the Holders for any failure to comply with
this section that results from a change in law or regulation or in the
interpretation thereof.
(e) All prior actions taken by Michael E. Sproule, Michael G. Fraizer
and James A. Smallenberger on behalf of Parent in furtherance of Parent's
powers, duties and obligations under the Original Trust Agreement are hereby
ratified and affirmed as actions of the Trust.
Section 2.08. ASSETS OF TRUST. The assets of the Trust shall consist
of the Trust Property.
Section 2.09. TITLE TO TRUST PROPERTY. Legal title to all Trust
Property shall be vested at all times in the Property Trustee (in its capacity
as such) and shall be held and administered by the Property Trustee for the
benefit of the Trust and the Securityholders in accordance with this Trust
Agreement.
ARTICLE III
Payment Account
Section 3.01. PAYMENT ACCOUNT.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclusive control and sole right of withdrawal with
respect to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this Trust Agreement.
All monies and other property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment Account for the
exclusive benefit of the Securityholders and for distribution as herein
provided, including (and subject to) any priority of payments provided for
herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
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ARTICLE IV
Distributions; Redemption
Section 4.01. DISTRIBUTIONS.
(a) The Trust Securities represent undivided beneficial interests
in the Trust Property, and Distributions (including of Additional Amounts)
will be made on the Trust Securities at the rate and on the dates that
payments of interest (including of Additional Interest, as defined in the
Indenture) are made on the Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative, and
will accumulate whether or not there are funds of the Trust available for the
payment of Distributions. Distributions shall accumulate from
_______________, 1997, and, except in the event (and to the extent) that the
Parent exercises its right to defer interest payments for the Debentures
pursuant to Section 301 of the Indenture, shall be payable semi-annually in
arrears on January 31 and July 31 of each year, commencing on July 31, 1997.
If any date on which Distributions are otherwise payable on the Trust
Securities is not a Business Day, then the payment of such Distribution shall
be made on the next succeeding day which is a Business Day (and without any
additional distribution or other payment in respect of any such delay) except
that, if such Business Day is in the next succeeding calendar year, payment
of such Distribution shall be made on the immediately preceding Business Day,
in each case with the same force and effect as if made on the date on which
such payment was originally payable (each date on which distributions are
payable in accordance with this Section 4.01(a), a "Distribution Date").
(ii) Subject to Section 4.03 hereof, all Distributions will be made
pro rata on each of the Trust Securities. Distributions payable on the
Capital Securities shall be fixed at a rate of [_____%] per annum of the
Liquidation Amount of the Capital Securities. Distributions payable on the
Common Securities shall be fixed at a rate of [_____%] per annum of the
Liquidation Amount of the Common Securities. The amount of Distributions
payable for any full semi-annual period shall be computed on the basis of
twelve 30-day months and a 360-day year and, for any period shorter than a
full monthly period, shall be computed on the basis of the actual number of
days elapsed in such period. The amount of Distributions payable for any
period shall include the Additional Amounts, if any.
(iii) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be deemed payable on each
Distribution Date only to the extent that the Trust has funds available in the
Payment Account for the payment of such Distributions.
(b) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on
the Securities Register for the Trust Securities at the close of business on
the relevant record date, which shall be one Business Day prior to such
Distribution Date; PROVIDED, HOWEVER, that in the event that the Capital
Securities do not remain in book-entry-only form, the relevant record date
shall be the date fifteen (15) days prior to the relevant Distribution Date.
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Section 4.02. REDEMPTION.
(a) On each Debenture Redemption Date and on the stated maturity of
the Debentures, the Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption or liquidation shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number or numbers of the Capital Securities affected;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the aggregate Liquidation Amount of the
particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price will become due and
payable upon each such Trust Security to be redeemed and that Distributions
thereon will cease to accrue on and after said date; and
(vi) the place or places where the Trust Securities are to be
surrendered for the payment of the Redemption Price.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Debentures. Redemptions of the Trust Securities shall be made and
the Redemption Price shall be payable on each Redemption Date only to the extent
that the Trust has funds available in the Payment Account for the payment of
such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect
of any Capital Securities, then, by 12:00 noon, New York time, on the
Redemption Date, subject to Section 4.02(c), the Property Trustee will, so
long as the Capital Securities are in book-entry-only form, irrevocably
deposit with the Clearing Agency for the Capital Securities funds sufficient
to pay the applicable Redemption Price, will give such Clearing Agency
irrevocable instructions and authority to pay the Redemption Price to the
Holders thereof. If the Capital Securities are no longer in book-entry-only
form, the Property Trustee, subject to Section 4.02(c), will irrevocably
deposit with the Paying Agent funds sufficient to pay the applicable
Redemption Price and will give the Paying Agent irrevocable instructions and
authority to pay the Redemption Price to the Holders thereof upon surrender
of their Capital Securities Certificates. Notwithstanding the foregoing,
Distributions payable on or prior to the Redemption Date for any Trust
Securities called for redemption shall be payable to the Holders of such
Trust Securities as they appear on the Securities Register for the Trust
Securities on the relevant record dates for the related
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Distribution Dates. If notice of redemption shall have been given and funds
deposited as required, then upon the date of such deposit, all rights of
Securityholders holding Trust Securities so called for redemption will cease,
except the right of such Securityholders to receive the Redemption Price and
any Distribution payable in respect of the Trust Securities on or prior to
the Redemption Date, but without interest on such Redemption Price, and such
Trust Securities will cease to be outstanding. In the event that any date
fixed for redemption of Trust Securities is not a Business Day, then payment
of the Redemption Price payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day
falls in the next 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 such date. In the event that payment of the Redemption Price in
respect of any Trust Securities called for redemption is improperly withheld
or refused and not paid either by the Trust or by the Depositor pursuant to
the Guarantee, Distributions on such Trust Securities will continue to
accumulate, as set forth in Section 4.01, from the Redemption Date originally
established by the Trust for such Trust Securities to the date such
Redemption Price is actually paid, in which case the actual payment date will
be the date fixed for redemption for purposes of calculating the Redemption
Price.
(e) Payment of the Redemption Price on the Trust Securities and
distribution of Debentures to holders of Capital Securities shall be made to
the recordholders thereof as they appear on the Securities Register for the
Trust Securities on the relevant record date, which shall be one Business Day
prior to the relevant Redemption Date or Liquidation Date, as applicable;
PROVIDED, HOWEVER, that in the event that the Capital Securities do not
remain in book-entry-only form, the relevant record date shall be the date
fifteen (15) days prior to the Redemption Date or Liquidation Date, as
applicable.
(f) Subject to Section 4.03(a), if less than all the Outstanding
Trust Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated
proportionally between the Common Securities and the Capital Securities
according to their aggregate Liquidation Amounts. The particular Capital
Securities to be redeemed shall be selected on a pro rata basis (based upon
Liquidation Amounts) not more than 60 days prior to the Redemption Date by
the Property Trustee from the Outstanding Capital Securities not previously
called for redemption, by such method (including, without limitation, by lot)
as the Property Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions (equal to $1,000 or an integral
multiple of $1,000 in excess thereof) of the Liquidation Amount of Capital
Securities of a denomination larger than $1,000, PROVIDED that so long as the
Capital Securities are in book-entry-only form, such selection shall be made
in accordance with the customary procedures for the Clearing Agency for the
Capital Securities. The Property Trustee shall promptly notify the Security
Registrar in writing of the Capital Securities selected for redemption and,
in the case of any Capital Securities selected for partial redemption, the
Liquidation Amount thereof to be redeemed. For all purposes of this Trust
Agreement, unless the context otherwise requires, all provisions relating to
the redemption of Capital Securities shall relate, in the case of any Capital
Securities redeemed or to be redeemed only in part, to the portion of the
aggregate Liquidation Amount of Capital Securities which has been or is to be
redeemed.
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Section 4.03. SUBORDINATION OF COMMON SECURITIES.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, the Redemption Price of and the Liquidation Distribution in
respect of the Trust Securities, as applicable, shall be made, subject to
Section 4.02(f), PRO RATA among the Capital Securities and the Common
Securities based on the Liquidation Amount of the Trust Securities; PROVIDED,
HOWEVER, that if on any Distribution Date, Redemption Date or Liquidation
Date any Event of Default resulting from a Debenture Event of Default
specified in Section 501(1) or 501(2) of the Indenture shall have occurred
and be continuing, no payment of any Distribution (including Additional
Amounts, if applicable) on, or Redemption Price of or Liquidation
Distribution in respect of, any Common Security, and no other payment on
account of the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated
and unpaid Distributions (including Additional Amounts, if applicable) on all
Outstanding Capital Securities for all distribution periods terminating on or
prior thereto, or in the case of payment of the Redemption Price the full
amount of such Redemption Price on all Outstanding Capital Securities, then
called for redemption, or in the case of payment of the Liquidation
Distribution the full amount of such Liquidation Distribution on all
Outstanding Capital Securities, shall have been made or provided for, and all
funds available to the Property Trustee shall first be applied to the payment
in full in cash of all Distributions (including Additional Amounts, if
applicable) on, or the Redemption Price of, Capital Securities then due and
payable.
(b) In the case of the occurrence of any Event of Default resulting
from any Debenture Event of Default, the Holder of Common Securities will be
deemed to have waived any right to act with respect to any such Event of
Default under this Trust Agreement until the effect of all such Events of
Default with respect to the Capital Securities have been cured, waived or
otherwise eliminated. Until all such Events of Default under this Trust
Agreement with respect to the Capital Securities have been so cured, waived
or otherwise eliminated, the Property Trustee shall act solely on behalf of
the Holders of the Capital Securities and not on behalf of the Holder of the
Common Securities, and only the Holders of the Capital Securities will have
the right to direct the Property Trustee to act on their behalf.
Section 4.04. PAYMENT PROCEDURES. Payments of Distributions
(including Additional Amounts if applicable) in respect of the Capital
Securities shall be made at (i) the Corporate Trust office of the Property
Trustee, (ii) the principal office of any Paying Agent, or (iii) the
principal office of the Securities Registrar and Transfer Agent; PROVIDED
THAT payment of any Distribution may be made, at the option of the
Administrative Trustees, by check mailed to the address of the Person
entitled thereto as such address shall appear on the Securities Register or
by wire transfer in immediately available funds at such place and to such
account as may be designated by the Person entitled thereto as specified in
the Securities Register; if the Capital Securities are held by a Clearing
Agency, such payments shall be made either by check or by wire transfer, at
the option of the Paying Agent, to the Clearing Agency in immediately
available funds, which shall credit the relevant Persons' accounts at such
Clearing Agency on the applicable Distribution Dates. Payments in respect of
the Common Securities shall be made in such manner as shall be mutually
agreed between the Property Trustee and the Holder of the Common Securities.
Section 4.05. TAX RETURNS AND REPORTS.
(a) The Administrative Trustees shall prepare (or cause to be
prepared), at the Depositor's expense, and filed by January 31 following each
calendar year all Federal, state and local tax and information returns and
reports required to be filed by or in respect of the Trust. In this regard, by
January 31 following each calendar year the Administrative Trustees shall (a)
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prepare and file (or cause to be prepared or filed) the Internal Revenue Service
Form 1041 (or any successor form) required to be filed in respect of the Trust
in each taxable year of the Trust and (b) prepare and furnish (or cause to be
prepared and furnished) to each Securityholder the related Internal Revenue
Service Form 1099 (or any successor form). The Administrative Trustees shall
provide the Depositor and the Property Trustee with a copy of all such returns,
reports and schedules promptly after such filing or furnishing.
(b) In the event that any withholding tax is imposed on the Trust's
payment to a Securityholder, such tax shall reduce the amount otherwise
distributable to the Securityholder in accordance with this Section. Any
Securityholder who is a nonresident alien individual or which is organized under
the laws of a jurisdiction outside the United States shall, on or prior to the
date such Securityholder becomes a Securityholder, (a) so notify the Trust and
the Trustees, and (b) either (i) provide the Trust and the Trustees with
Internal Revenue Service form 1001, 4224, 8709 or W-8, as appropriate, or (ii)
notify the Trust and the Trustees that it is not entitled to an exemption from
United States withholding tax or a reduction in the rate thereof on payments of
interest. Any such Securityholder agrees by its acceptance of a Capital
Security, on an ongoing basis, to provide like certification for each taxable
year for which it is necessary to provide such information and to notify the
Trust and the Trustees should subsequent circumstances arise affecting the
information provided the Trustees in clauses (a) and (b) above. The Trustees
shall be fully protected in relying upon, and each Securityholder by its
acceptance of a Capital Security hereunder agrees to indemnify and hold the
Trustees harmless against all claims or liability of any kind arising in
connection with or related to the Trustees' reliance upon any documents, forms
or information provided by any Securityholder to the Trustees. In addition, if
the Trustees have not withheld taxed on any payment made to any Securityholder,
and the Trustees are subsequently required to remit to any taxing authority any
such amount not withheld, such Securityholder shall return such amount to the
Trustees upon written demand by the Trustees. The Trustees shall be liable only
for direct (but not consequential) damages to any Securityholder due to the
Trustees' violation of the Code and only to the extent such liability is caused
by the Trustees' failure to act in accordance with its standard of care under
this Agreement. The Trustees shall comply with United States Federal
withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the Trust
Securities.
Section 4.06. PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST. Upon
receipt under the Debentures of Additional Sums (as defined in the Indenture),
the Property Trustee shall promptly pay any taxes, duties or governmental
charges of whatsoever nature (other than withholding taxes) imposed on the Trust
by the United States or any other taxing authority.
Section 4.07. PAYMENTS UNDER INDENTURE. Any amount payable
hereunder to any Holder of Capital Securities (and any Owner with respect
thereto) shall be reduced by the amount of any corresponding payment such
Holder (and Owner with respect to a Holder's Capital Securities) has directly
received pursuant to Section 508 of the Indenture or Section 5.14 of this
Trust Agreement.
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ARTICLE V
Trust Securities Certificates
Section 5.01. INITIAL OWNERSHIP. Upon the formation of the Trust and
the contribution by the Depositor pursuant to Section 2.03 and until the
issuance of the Trust Securities, and at any time during which no Trust
Securities are outstanding, the Depositor shall be the sole beneficial owner of
the Trust.
Section 5.02. THE TRUST SECURITIES CERTIFICATES. The Capital
Securities Certificates shall be issued in minimum denominations of $1,000
Liquidation Amount and integral multiples of $1,000 in excess thereof, and
the Common Securities Certificates shall be issued in denominations of $1,000
Liquidation Amount and integral multiples thereof. The Trust Securities
Certificates shall be executed on behalf of the Trust by manual signature of
at least one Administrative Trustee. Trust Securities Certificates bearing
the manual signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the
Trust, shall be validly issued and entitled to the benefits of this Trust
Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the delivery of such Trust Securities
Certificates or did not hold such offices at the date of delivery of such
Trust Securities Certificates. A transferee of a Trust Securities
Certificate shall become a Securityholder, and shall be entitled to the
rights and subject to the obligations of a Securityholder hereunder, upon due
registration of such Trust Securities Certificate in such transferee's name
pursuant to Section 5.04.
Section 5.03. DELIVERY OF TRUST SECURITIES CERTIFICATES. On the
Closing Date and on any date on which Capital Securities are required to be
delivered pursuant to the exercise of the overallotment option provided for
in the Underwriting Agreement, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.04 and 2.05, to be executed on behalf of the Trust and delivered
to or upon the written order of the Depositor, executed by one authorized
officer thereof, without further corporate action by the Depositor, in
authorized denominations.
Section 5.04. REGISTRATION OF TRANSFER AND EXCHANGE OF CAPITAL
SECURITIES CERTIFICATES. The Property Trustee shall keep or cause to be
kept, at the office or agency maintained pursuant to Section 5.08, a register
or registers for the purpose of registering Trust Securities Certificates and
transfers and exchanges of Trust Securities Certificates (the "Securities
Register") in which, subject to such reasonable regulations as it may
prescribe, the Securities Registrar shall provide for the registration of
Capital Securities Certificates and Common Securities Certificates (subject
to Section 5.10 in the case of the Common Securities Certificates) and
registration of transfers and exchanges of Capital Securities Certificates as
herein provided. The Bank shall be the initial Securities Registrar and
Transfer Agent. The provisions of Sections 8.01, 8.03 and 8.06 shall apply
to the Bank also in its role as Securities Registrar and Transfer Agent, for
so long as the Bank shall act as Securities Registrar and Transfer Agent.
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Upon surrender for registration of transfer of any Capital
Securities Certificate at the office or agency maintained pursuant to Section
5.08, the Administrative Trustees or any one of them shall execute and shall
cause to be delivered to the Property Trustee, and the Property Trustee shall
deliver in the name of the designated transferee or transferees, one or more
new Capital Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount dated the date of execution by such
Administrative Trustee or Trustees. The Securities Registrar shall not be
required to register the transfer of any Capital Securities that have been
called for redemption. At the option of a Holder, Capital Securities
Certificates may be exchanged for other Capital Securities Certificates in
authorized denominations and of a like aggregate Liquidation Amount upon
surrender of the Capital Securities Certificates to be exchanged at the
office or agency maintained pursuant to Section 5.08.
Every Capital Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to an Administrative Trustee and the
Securities Registrar duly executed by the Holder or his attorney duly authorized
in writing. Each Capital Securities Certificate surrendered for registration
of transfer or exchange shall be canceled and subsequently disposed of by the
Securities Registrar, in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Capital Securities Certificates, but the Securities Registrar may
require payment (with the giving of such indemnity as the Trust or the Parent
may require) of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Capital
Securities Certificates.
Section 5.05. MUTILATED, DESTROYED, LOST OR STOLEN TRUST SECURITIES
CERTIFICATES. If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Trust shall execute and cause to be made available for delivery, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class, tenor and
denomination. In connection with the issuance of any new Trust Securities
Certificate under this Section, the Administrative Trustees or the Securities
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Trust Securities Certificate issued pursuant to this Section shall constitute
conclusive evidence of an undivided beneficial interest in the assets of the
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Trust Securities Certificate shall be found at any time.
Section 5.06. PERSONS DEEMED SECURITYHOLDERS. Prior to due
presentation of a Trust Securities Certificate for registration of transfer, the
Administrative Trustees or the Securities Registrar shall treat the Person in
whose name any Trust Securities Certificate shall be
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registered in the Securities Register as the owner of such Trust Securities
Certificate for the purpose of receiving distributions and for all other
purposes whatsoever, and neither the Trustees nor the Securities Registrar shall
be bound by any notice to the contrary.
Section 5.07. ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND ADDRESSES.
The duties and responsibilities of the Depositor and any other party to provide
any list of Securityholders shall be as set forth in the Trust Indenture Act,
including Section 312 of such Trust Indenture Act. Each Holder, by receiving
and holding a Trust Securities Certificate, and each Owner shall be deemed to
have agreed not to hold either the Depositor, the Property Trustee or the
Administrative Trustees accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was derived.
Section 5.08. MAINTENANCE OF OFFICE OR AGENCY. The
Administrative Trustees shall maintain an office or offices or agency or
agencies where Capital Securities Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Trustees in respect of the Trust Securities Certificates may be served.
Such offices or agency shall consist of (i) the Corporate Trust Office of the
Property Trustee which address is c/o Wilmington Trust Company, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890, (ii) the
principal office of any Paying Agent or (iii) the principal office of the
Securities Registrar and Transfer Agent. The Administrative Trustees shall
give prompt written notice to the Depositor and to the Securityholders of any
change in the location of the Securities Register or any such office or
agency.
Section 5.09. APPOINTMENT OF PAYING AGENT. The Paying Agent shall
make distributions to Securityholders from the Payment Account and shall
report the amounts of such distributions to the Property Trustee and the
Administrative Trustees. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account for the purpose of making the
distributions referred to above. The Administrative Trustees may revoke such
power and remove the Paying Agent in their sole discretion. The Paying Agent
shall initially be the Bank, and any co-paying agent chosen by the Bank, and
acceptable to the Administrative Trustees and the Depositor. Any Person
acting as Paying Agent shall be permitted to resign as Paying Agent upon 30
days' written notice to the Administrative Trustees, the Property Trustee and
the Depositor. In the event that the Bank shall no longer be the Paying
Agent or a successor Paying Agent shall resign or its authority to act be
revoked, the Administrative Trustees shall appoint a successor that is
acceptable to the Property Trustee and the Depositor to act as Paying Agent
(which shall be a bank or trust company). The Administrative Trustees shall
cause such successor Paying Agent or any additional Paying Agent appointed by
the Administrative Trustees to execute and deliver to the Trustees an
instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such successor Paying
Agent or additional Paying Agent will hold all sums, if any, held by it for
payment to the Securityholders in trust for the benefit of the
Securityholders entitled thereto until such sums shall be paid to such
Securityholders. The Paying Agent shall return all unclaimed funds to the
Property Trustee and upon removal of a Paying Agent such Paying Agent shall
also return all funds in its possession to the Property Trustee. The
provisions of Sections 8.01, 8.03 and 8.06 shall apply to the Bank also in
its role as Paying Agent, for so
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long as the Bank shall act as Paying Agent and, to the extent applicable, to any
other paying agent appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
Section 5.10. OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR. On the
Closing Date and on each other date provided for in Section 2.05, the
Depositor shall acquire and thereafter shall retain beneficial and record
ownership of the Common Securities. Any attempted transfer of the Common
Securities other than as set forth in the preceding sentence shall be void;
PROVIDED that any permitted successor of the Depositor under the Indenture
may succeed to the Depositor's ownership of the Common Securities. The
Administrative Trustees shall cause each Common Securities Certificate issued
to the Depositor to contain a legend stating substantially "THIS CERTIFICATE
IS NOT TRANSFERABLE".
Section 5.11. BOOK-ENTRY CAPITAL SECURITIES CERTIFICATES; COMMON
SECURITIES CERTIFICATE.
(a) The Capital Securities Certificates, upon original issuance,
will be issued in the form of a typewritten Capital Securities Certificate or
Certificates representing Book-Entry Capital Securities Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by,
or on behalf of, the Trust. Such Capital Securities Certificate or
Certificates shall initially be registered on the Securities Register in the
name of Cede & Co., the nominee of the initial Clearing Agency, and no
Book-Entry Capital Securities Certificate may be exchanged in whole or in
part for Capital Securities Certificates registered, and no transfer of a
Book-Entry Capital Securities Certificate in whole or in part may be
registered, in the name of any Person other than the Clearing Agency for such
Book-Entry Capital Securities Certificates or a nominee thereof, except as
provided in Section 5.13. Unless and until Definitive Capital Securities
Certificates have been issued to Owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in full force and
effect;
(ii) the Clearing Agency or its nominee, as registered owner of a
Book-Entry Capital Securities Certificate, shall be the Holder of such
Book-Entry Capital Securities Certificate for all purposes under this Trust
Agreement and the Book-Entry Capital Securities Certificate, and Owners with
respect to a Book-Entry Capital Securities Certificate shall hold such
interests pursuant to the Applicable Procedures; the Securities Registrar and
the Trustees shall be entitled to deal with the Clearing Agency for all
purposes of this Trust Agreement relating to the Book-Entry Capital
Securities Certificates (including the payment of the Liquidation Amount of
and Distributions on the Book-Entry Capital Securities and the giving of
instructions or directions to Owners of Book-Entry Capital Securities) as
the sole Holder of the Book-Entry Capital Securities and shall have no
obligations to the Owners thereof;
(iii) to the extent that the provisions of this Section 5.11 conflict with
any other provisions of this Trust Agreement, the provisions of this
Section 5.11 shall control;
(iv) the rights of the Owners of the Book-Entry Capital Securities
Certificates shall be exercised only through the Clearing Agency and shall be
limited to those established by law, the Applicable Procedures and agreements
between such Owners and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Certificate Depository Agreement, unless and
until Definitive Capital Securities Certificates are issued pursuant to
Section 5.13, the initial Clearing Agency will make book-entry transfers
among the Clearing Agency Participants and receive and transmit payments on
the Capital Securities to such Clearing Agency Participants; and
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(v) whenever this Trust Agreement requires or permits actions to be
taken based upon instructions or directions of Holders of Trust Certificates
evidencing a specified percentage of the aggregate Liquidation Amount, the
Clearing Agency shall be deemed to represent such percentage only to the extent
that it has received instructions to such effect from Owners and/or Clearing
Agency Participants owning or representing, respectively, such required
percentage of the beneficial interest in the applicable class of Trust
Certificates and has delivered such instructions to the Administrative Trustees.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
Section 5.12. NOTICES TO CLEARING AGENCY. To the extent that a
notice or other communication to the Owners is required under this Trust
Agreement, unless and until Definitive Capital Securities Certificates shall
have been issued to Owners pursuant to Section 5.13, the Trustees shall give
all such notices and communications specified herein to be given to the
Clearing Agency, and shall have no obligations to the Owners.
Section 5.13. DEFINITIVE CAPITAL SECURITIES CERTIFICATES. If (a)
the Clearing Agency advises the Trustees, the Securities Registrar and
Transfer Agent and the Company by giving ninety (90) days' prior written
notice (PROVIDED, HOWEVER, that if the Clearing Agency is required to
discontinue its services as depositary with respect to the Capital Securities
pursuant to any governmental, judicial or regulatory order or decree, and
such discontinuation is required in less than 90 days from the date of such
order or decree, then the Clearing Agency may discontinue such services by
giving notice to the Company, the Trustees and the Securities Registrar and
Transfer Agent as soon as reasonably possible that it is no longer willing or
able to properly discharge its responsibilities with respect to the Capital
Securities Certificates, and the Depositor is unable to locate a qualified
successor, (b) the Clearing Agency ceases to be a clearing agency registered
under the Exchange Act, at a time when the Clearing Agency is required to be
so registered to act as such clearing agency, (c) the Trust at its option
advises the Depository in writing that it elects to terminate the book-entry
system through the Clearing Agency or (d) a Debenture Event of Default has
occurred and is continuing, then the Administrative Trustees shall notify the
Clearing Agency and the Clearing Agency shall notify all Owners of Capital
Securities Certificates and the Trustees of the occurrence of any such event
and of the availability of the Definitive Capital Securities Certificates to
Owners of such class or classes, as applicable, requesting the same. If any
Book-Entry Capital Securities Certificate is to be exchanged for other
Capital Securities Certificates or cancelled in part, or if any other Capital
Securities Certificate is to be exchanged in whole or in part for Book-Entry
Capital Securities represented by a Book-Entry Capital Securities
Certificate, then either (i) such Book-Entry Capital Securities Certificate
shall be so surrendered for exchange or cancellation as provided in this
Article V or (ii) the aggregate Liquidation Amount represented by such
Book-Entry Capital Securities Certificate shall be reduced, subject to
Section 5.02, or increased by an amount equal to the Liquidation Amount
represented by that portion of the Book-Entry Capital Securities Certificate
to be so exchanged or cancelled, or equal to the Liquidation Amount
represented by such other Capital Securities Certificates to be so exchanged
for Book-Entry Capital Securities represented thereby, as the case may be, by
means of an appropriate adjustment made on the records of the Securities
Registrar, whereupon the Property Trustee, in accordance with the Applicable
Procedures, shall instruct the Clearing Agency or its authorized
representative to make a corresponding adjustment to its records. Upon
surrender to the Administrative Trustees of the typewritten Capital
Securities Certificate or Certificates representing the Book Entry Capital
Securities Certificates by the Clearing Agency, accompanied by registration
instructions, the Administrative Trustees, or any one of them, shall execute
the Definitive Capital Securities Certificates in accordance with the
instructions of the Clearing Agency. In the event that Capital Securities
are issued in definitive form, such Capital Securities will be in
denominations of $1,000 and integral multiples thereof. Neither the
Securities Registrar nor the Trustees shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Capital Securities Certificates, the Trustees shall recognize the Holders of
the Definitive Capital Securities Certificates as Securityholders. The
Definitive Capital Securities Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable
to the Administrative Trustees, as evidenced by the execution thereof by the
Administrative Trustees or any one of them and may have such letters, numbers
or other marks of identification or designation and such legends or
endorsements as the Administrative Trustees may deem appropriate, or as may
be required to
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comply with any law or rule or regulation made pursuant thereto or with any rule
or regulation of any stock exchange on which Capital Securities may be listed,
or to conform to usage.
Section 5.14. RIGHTS OF SECURITYHOLDERS.
(a) The legal title to the Trust Property is vested exclusively in
the Property Trustee (in its capacity as such) in accordance with Section
2.09, and the Securityholders shall not have any right or title therein other
than the undivided beneficial interest in the assets of the Trust conferred
by their Trust Securities and they shall have no right to call for any
partition or division of property, profits or rights of the Trust except as
described below. The Trust Securities shall be personal property giving only
the rights specifically set forth therein and in this Trust Agreement. The
Trust Securities shall have no preemptive or similar rights and when issued
and delivered to Securityholders against payment of the purchase price
therefor and upon such payment will be fully paid and nonassessable by the
Trust. The Holders of the Trust Securities, in their capacities as such,
shall be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
(b) For so long as any Capital Securities remain Outstanding, if,
upon a Debenture Event of Default, the Debenture Trustee fails or the holders
of not less than 25% in aggregate principal amount of the outstanding
Debentures fail to declare the principal of all of the Debentures to be
immediately due and payable, the Holders of at least 25% in Liquidation
Amount of the Capital Securities then Outstanding shall have such right by a
notice in writing to the Depositor and the Debenture Trustee; and upon any
such declaration such principal amount of and the accrued interest on all of
the Debentures shall become immediately due and payable, provided that the
payment of principal and interest on such Debentures remains subordinated to
the extent provided in the Indenture.
At any time after such a declaration of acceleration with respect to
the Debentures has been made and before a judgment or decree for payment of
the money due has been obtained by the Debenture Trustee as in the Indenture
provided, if the holders of a majority in aggregate principal amount of the
outstanding Debentures fail to annul any such declaration and waive such
default, the Holders of a majority in Liquidation Amount of the Capital
Securities, by written notice to the Depositor and the Debenture Trustee, may
rescind and annul such declaration and its consequences if:
(i) the Depositor has paid or deposited with the Debenture
Trustee a sum sufficient to pay:
(A) all overdue installments of interest (including any
Additional Interest (as defined in the Indenture) on all of the
Debentures,
(B) the principal of (and premium, if any, on) any Debenture
which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Debentures,
and
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(C) all sums paid or advanced by the Denture Trustee under the
Indenture and the reasonable compensation, expenses, disbursements and
advances of the Debenture Trustee and the Property Trustee, their
agents and counsel; and
(ii) all Debenture Events of Default, other than the non-payment
of the principal of the Debentures which has become due solely by such
acceleration, have been cured or waived as provided in Section 513 of the
Indenture.
The holders of a majority in aggregate Liquidation Amount of the
Capital Securities may, on behalf of the Holders of all the Capital
Securities, waive any past default under the Indenture, except a default in
the payment of principal of (or premium, if any) or interest (including any
Additional Interest, as defined in the Indenture) on any Debenture (unless
such default has been cured and a sum sufficient to pay all matured
installments of interest (including any Additional Interest, as defined in
the Indenture) and principal due otherwise than by acceleration (and premium,
if any) has been deposited with the Debenture Trustee) or a default in
respect of a covenant or provision which under the Indenture cannot be
modified or amended without the consent of the holder of each outstanding
Debenture. Upon such waiver, any such default or Event of Default shall
cease to exist, and any default or Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this Trust Agreement, but
no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such
an acceleration, or rescission and annulment thereof, by Holders of the
Capital Securities all or part of which are represented by Book-Entry
Capital Securities Certificates, a record date shall be established for
determining Holders of Outstanding Capital Securities entitled to join in such
notice, which record date shall be at the close of business on the day the
Property Trustee receives such notice. The Holders on such record date, or
their duly designated proxies, and only such Persons, shall be entitled to join
in such notice, whether or not such Holders remain Holders after such record
date; PROVIDED, that, unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day which is 90
days after such record date, such notice of declaration or acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of declaration of
acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice which has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 5.14(b).
(c) For so long as any Capital Securities remain outstanding, to
the fullest extent permitted by law and subject to the terms of this Trust
Agreement and the Indenture, upon a Debenture Event of Default specified in
Section 501(1) or 501(2) of the Indenture, any Holder of Capital Securities
shall have the right to institute a proceeding directly against the
Depositor, pursuant to Section 508 of the Indenture, for enforcement of
payment to such Holder of the principal amount of (and premium, if any) or
interest (including any Additional Interest, as defined in the Indenture) on
Debentures having a principal amount equal to the aggregate Liquidation
Amount of the Capital Securities of such Holder (a "Direct Action"). Except
as set forth in Section 5.14(b) and (c), the Holders of Capital Securities
shall have no right to exercise directly any right or remedy available to the
holders of, or in respect of, the Debentures.
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ARTICLE VI
Acts of Securityholders; Meetings; Voting
Section 6.01. LIMITATIONS ON VOTING RIGHTS.
(a) Except as provided in this Section, in Section 10.03 and in the
Indenture and as otherwise required by law, no Holder of Capital Securities
shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Trust Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee, the
Trustees shall not (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or executing any
trust or power conferred on the Debenture Trustee with respect to such
Debentures, (ii) waive any past default which is waivable under Section 513 of
the Indenture, (iii) exercise any right to rescind or annul a declaration that
the principal of all the Debentures shall be due and payable or (iv) consent to
any amendment, modification or termination of the Indenture or the Debentures,
where such consent shall be required, without, in each case, obtaining the prior
approval of the Holders of at least a majority in Liquidation Amount of the
Outstanding Capital Securities; PROVIDED, HOWEVER, that where a consent under
the Indenture would require the consent of each holder of Debentures affected
thereby, no such consent shall be given by the Property Trustee without the
prior written consent of each Holder of Capital Securities. The Trustees
shall not revoke any action previously authorized or approved by a vote of the
Holders of Capital Securities, except by a subsequent vote of the Holders of
Capital Securities. The Property Trustee shall notify all Holders of the
Capital Securities of any notice of default received from the Debenture
Trustee. In addition to obtaining the foregoing approvals of the Holders of the
Capital Securities, prior to taking any of the foregoing actions, the Trustees
shall, at the expense of the Depositor, obtain an Opinion of Counsel experienced
in such matters to the effect that the Trust will not fail to be classified as a
grantor trust for United States Federal income tax purposes on account of such
action.
(c) Except as provided in Section 10.03, if any proposed amendment to
the Trust Agreement provides for, or the Trustees otherwise propose to effect,
(i) any action that would adversely affect in any material respect the powers,
preferences or special rights of the Capital Securities, whether by way of
amendment to the Trust Agreement or otherwise, or (ii) the dissolution,
winding-up or termination of the Trust, other than pursuant to the terms of this
Trust Agreement, then the Holders of Outstanding Capital Securities as a class
will be entitled to vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of the Holders of at
least a majority in Liquidation Amount of the Outstanding Capital Securities.
No amendment to this Trust Agreement may be made if, as a result of such
amendment, the Trust would fail to be classified as a grantor trust for United
States Federal
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income tax purposes or would lose its exemption from status as an "investment
company" under the Investment Company Act.
Section 6.02. NOTICE OF MEETINGS. Notice of all meetings of the
Capital Securityholders, stating the time, place and purpose of the meeting,
shall be given by the Administrative Trustees pursuant to Section 10.09 to each
Capital Securityholder of record, at his registered address, at least 15 days
and not more than 90 days before the meeting. At any such meeting, any business
properly before the meeting may be so considered whether or not stated in the
notice of the meeting. Any adjourned meeting may be held as adjourned without
further notice.
Any and all notices to which any Capital Securityholder hereunder
may be entitled and any and all communications shall be deemed duly served or
given if mailed, postage prepaid, addressed to any Capital Securityholder of
record at his last known address as recorded on the Securities Register.
Section 6.03. MEETINGS OF CAPITAL SECURITYHOLDERS. No annual
meeting of Securityholders is required to be held. The Administrative
Trustees, however, shall call a meeting of Securityholders to vote on any
matter upon the written request of the Capital Securityholders of record of
at least 25% in aggregate Liquidation Amount of the Outstanding Capital
Securities and the Administrative Trustees or the Property Trustee may, at
any time in their discretion, call a meeting of Capital Securityholders to
vote on any matters as to the which Capital Securityholders are entitled to
vote.
Capital Securityholders of record of at least 50% in aggregate
Liquidation Amount of the Outstanding Capital Securities, present in person
or by proxy, shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Capital Securityholders of record present, in person or by proxy, holding at
least a majority in aggregate Liquidation Amount of the Capital Securities
held by the Capital Securityholders of record present, either in person or by
proxy, at such meeting shall constitute the action of the Securityholders,
unless this Trust Agreement requires a greater number of affirmative votes.
Section 6.04. VOTING RIGHTS. Securityholders shall be entitled to
one vote for each $1,000 of Liquidation Amount represented by their Trust
Securities in respect of any matter as to which such Securityholders are
entitled to vote.
Section 6.05. PROXIES, ETC. At any meeting of Securityholders, any
Securityholder entitled to vote thereat may vote by proxy, provided that no
proxy shall be voted at any meeting unless it shall have been placed on file
with the Administrative Trustees, or with such other officer or agent of the
Trust as the Administrative Trustees may direct, for verification prior to the
time at which such vote shall be taken. Pursuant to a resolution of the
Property Trustee, proxies may be solicited in the name of the Property Trustee
or one or more officers of the Property
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Trustee. Only Securityholders of record shall be entitled to vote. When Trust
Securities are held jointly by several persons, any one of them may vote at any
meeting in person or by proxy in respect of such Trust Securities, but if more
than one of them shall be present at such meeting in person or by proxy, and
such joint owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust Securities. A
proxy purporting to be executed by or on behalf of a Securityholder shall be
deemed valid unless challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger. No proxy shall be valid more
than three years after its date of execution.
Section 6.06. SECURITYHOLDER ACTION BY WRITTEN CONSENT. Any action
which may be taken by Securityholders at a meeting may be taken without a
meeting if Securityholders holding at least a majority in aggregate
Liquidation Amount of all Outstanding Trust Securities entitled to vote in
respect of such action (or such larger proportion thereof as shall be
required by any express provision of this Trust Agreement) shall consent to
the action in writing. The Administrative Trustees shall cause a notice of
any matter upon which action by written consent of the Securityholders is to
be taken, to be given to each Holder of record of the Outstanding Capital
Securities in the same manner as that set forth in Section 6.02 for notice of
meetings.
Section 6.07. RECORD DATE FOR VOTING AND OTHER PURPOSES. For the
purposes of determining the Securityholders who are entitled to notice of and
to vote at any meeting or by written consent, or to participate in any
distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Trust Agreement, or for the purpose of any
other action, the Administrative Trustees or the Property Trustee may from time
to time fix a date, not more than 90 days prior to the date of any meeting of
Securityholders or the payment of distribution or other action, as the case
may be, as a record date for the determination of the identity of the
Securityholders of record for such purposes.
Section 6.08. ACTS OF SECURITYHOLDERS. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Trust Agreement to be given, made or taken by Securityholders
or Owners may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Securityholders or Owners in person
or by an agent duly appointed in writing; and, except as otherwise expressly
provided herein, such action shall become effective when such instrument or
instruments are delivered to an Administrative Trustee. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Securityholders or Owners signing such
instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Trust Agreement and (subject to Section 8.01) conclusive in favor of the
Trustees, if made in the manner provided in this Section.
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
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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 any Trustee receiving the same
deems sufficient.
The ownership of Trust Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
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 Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise between the Securityholders of Trust
Securities and the Administrative Trustees or among such Securityholders or
Trustees with respect to the authenticity, validity or binding nature of any
request, demand, authorization, direction, consent, waiver or other Act of such
Securityholder or Trustee under this Article VI, then the determination of such
matter by the Property Trustee shall be conclusive with respect to such matter.
A Securityholder may institute a legal proceeding directly against the
Depositor under the Guarantee to enforce its rights under the Guarantee without
first instituting a legal proceeding against the Guarantee Trustee (as defined
in the Guarantee), the Trust or any person or entity.
Section 6.09. INSPECTION OF RECORDS. Upon reasonable notice to the
Administrative Trustees and the Property Trustee, the records of the Trust shall
be open to inspection by Securityholders during normal business hours for any
purpose reasonably related to such Securityholder's interest as a
Securityholder.
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ARTICLE VII
Representations and Warranties
Section 7.01. REPRESENTATIONS AND WARRANTIES OF THE BANK AND THE
PROPERTY TRUSTEE. The Bank and the Property Trustee, each severally on behalf
of and as to itself, hereby represents and warrants as to itself only and for
the benefit of the Depositor and the Securityholders that:
(a) the Bank is a banking corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(b) the Bank has full corporate power, authority and legal right to
execute, deliver and perform its obligations under this Trust Agreement and
has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Bank and constitutes the valid and legally binding
agreement of the Bank enforceable against the Bank in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(d) the execution, delivery and performance by the Bank of this Trust
Agreement have been duly authorized by all necessary corporate and other
action on the part of the Bank and the Property Trustee, and do not require
any approval of stockholders of the Bank and such execution, delivery and
performance will not (i) violate the Bank's Charter or By-laws,
(ii) violate any provision of, or constitute, with or without notice or
lapse of time, a default under, or result in the creation or imposition of,
any Lien on any properties included in the Trust Property pursuant to the
provisions of, any indenture, mortgage, credit agreement, license or other
agreement or instrument to which the Property Trustee or the Bank is a
party or by which it is bound, or (iii) violate any law, governmental rule
or regulation of the State of Delaware or the United States governing the
banking or trust powers of the Bank and the Property Trustee or any order,
judgment or decree applicable to the Property Trustee or the Bank;
(e) neither the authorization, execution or delivery by the Bank of
this Trust Agreement nor the consummation of any of the transactions by the
Bank or the Property Trustee contemplated herein or therein require the
consent or approval of, the giving of notice to, the registration with or
the taking of any other action with respect to any governmental authority
or agency under any existing federal law governing the banking or trust
powers of the Bank or under the laws of the United States or the State of
Delaware;
(f) there are no proceedings pending or, to the best of the Bank's
knowledge, threatened against or affecting the Bank or the Property Trustee
in any court or before any
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governmental authority, agency or arbitration board or tribunal which,
individually or in the aggregate, would materially and adversely affect the
Trust or would question the right, power and authority of the Bank to enter
into or perform its obligations as one of the Trustees under this Trust
Agreement; and
(g) the principal place of business of the Property Trustee is located
in the State of Delaware.
Section 7.02. REPRESENTATIONS AND WARRANTIES OF PARENT. The Parent
hereby represents and warrants for the benefit of the Securityholders that:
(a) this Trust Agreement has been duly authorized, executed and
delivered by Parent and constitutes the valid and legally binding agreement
of Parent enforceable against Parent in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(b) the Trust Securities Certificates issued on the Closing Date on
behalf of the Trust have been, and any Trust Securities Certificates to be
issued at the time of exercise, if any, of the overallotment option under
the Underwriting Agreement will be duly authorized and will have been, as
of each such date, duly and validly executed, issued and delivered by the
Trustees pursuant to the terms and provisions of, and in accordance with
the requirements of, this Trust Agreement and the Securityholders will be,
as of each such date, entitled to the benefits of this Trust Agreement; and
(c) there are no taxes, fees or other governmental charges payable by
the Trust (or the Trustees on behalf of the Trust) under the laws of the
State of Delaware or any political subdivision thereof in connection with
the execution, delivery and performance by the Bank or the Property
Trustee, as the case may be, of this Trust Agreement.
ARTICLE VIII
The Trustees
Section 8.01. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee, by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Trust Agreement shall require the Trustees to expend or risk their own funds or
otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provi-
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sion of this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be subject to the
provisions of this Section. Nothing in this Trust Agreement shall be
construed to release an Administrative Trustee from liability for such
Person's own negligent action, such Person's own negligent failure to act, or
such Person's own willful misconduct. To the extent that, at law or in
equity, any Trustee has duties and liabilities relating to the Trust or to
the Holders, such Trustee shall not be liable to the Trust or to any Holder
for such Trustee's good faith reliance on the provisions of this Trust
Agreement. The provisions of this Trust Agreement, to the extent that they
restrict the duties and liabilities of the Trustees otherwise existing at law
or in equity, are agreed by the Depositor and the Holders to replace such
other duties and liabilities of the Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and
proceeds from the Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to enable the Property
Trustee or a Paying Agent to make payments in accordance with the terms
hereof. Each Securityholder, by its acceptance of a Trust Security, agrees
that it will look solely to the revenue and proceeds from the Trust Property
to the extent legally available for distribution to it as herein provided and
that the Trustees are not personally liable to it for any amount
distributable in respect of any Trust Security or for any other liability in
respect of any Trust Security. This Section 8.01(b) does not limit the
liability of the Trustees expressly set forth elsewhere in this Trust
Agreement or, in the case of the Property Trustee, in the Trust Indenture Act.
(c) The Property Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Trust Agreement and no implied covenants shall be read into this Trust
Agreement against the Property Trustee. In case an Event of Default has
occurred (that has not been cured or waived), the Property Trustee shall
exercise such of the rights and powers vested in it by this Trust Agreement, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Trust Agreement shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the
Property Trustee, unless it shall be proved that the Property
Trustee was negligent in ascertaining the pertinent facts;
(ii) the Property 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 not less than a
majority in Liquidation Amount of the Capital Securities
relating to the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee,
or exercising any trust or power conferred upon the Property
Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Debentures and
the Payment Account shall be to deal with such property in a
similar manner as the Property Trustee
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deals with similar property for its own account, subject to the
protections and limitations on liability afforded to the
Property Trustee under this Trust Agreement and the Trust
Indenture Act;
(iv) the Property Trustee shall not be liable for any interest on
any money received by it except as it may otherwise agree with
the Depositor. Money held by the Property Trustee need not be
segregated from other funds held by it except in relation to
the Payment Account maintained by the Property Trustee pursuant
to Section 3.01 and except to the extent otherwise required by
law; and
(v) the Property Trustee shall not be responsible for monitoring
the compliance by the Administrative Trustees or the Depositor
with their respective duties under this Trust Agreement, nor
shall the Property Trustee be liable for the default or
misconduct of the Administrative Trustees or the Depositor.
Section 8.02. CERTAIN NOTICES.
Within five Business Days after the occurrence of any Event of
Default, the Property Trustee shall transmit, in the manner and to the extent
provided in Section 10.09, notice of any Event of Default actually known to the
Property Trustee to the Securityholders, the Administrative Trustees and the
Depositor, unless such Event of Default shall have been cured or waived.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the
Debentures pursuant to the Indenture, the Administrative Trustees shall
transmit, in the manner and to the extent provided in Section 10.09, notice of
such exercise to the Securityholders and the Property Trustee, unless such
exercise shall have been revoked.
Section 8.03. CERTAIN RIGHTS OF PROPERTY TRUSTEE. Subject to the
provisions of Section 8.01 and except as provided by law:
(a) the Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, Opinion of
Counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of
action or (ii) in construing any of the provisions in this Trust Agreement
the Property Trustee finds the same ambiguous or inconsistent with any
other provisions contained herein or (iii) the Property Trustee is unsure
of the application of any provision of this Trust Agreement, then, except
as to any
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matter as to which the Capital Securityholders are entitled to vote under
the terms of this Trust Agreement, the Property Trustee shall deliver a
notice to the Depositor requesting written instructions of the Depositor as
to the course of action to be taken. The Property Trustee shall take such
action, or refrain from taking such action, as the Property Trustee shall
be instructed in writing to take, or to refrain from taking, by the
Depositor; PROVIDED, HOWEVER, that if the Property Trustee does not receive
such instructions of the Depositor within ten Business Days after it has
delivered such notice, or such reasonably shorter period of time set forth
in such notice (which to the extent practicable shall not be less than two
Business Days), it may, but shall be under no duty to, take or refrain from
taking such action not inconsistent with this Trust Agreement as it shall
deem advisable and in the best interests of the Securityholders, in which
event the Property Trustee shall have no liability except for its own bad
faith, negligence or willful misconduct;
(c) any direction or act of the Depositor or the Administrative
Trustees contemplated by this Trust Agreement shall be sufficiently
evidenced by an Officer's Certificate;
(d) whenever in the administration of this Trust Agreement, the
Property Trustee shall deem it desirable that a matter be established
before undertaking, suffering or omitting any action hereunder, the
Property Trustee (unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request and rely upon an
Officer's Certificate which, upon receipt of such request, shall be
promptly delivered by the Depositor or the Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or reregistration thereof;
(f) the Property Trustee may (at the expense of Depositor) consult
with counsel (which counsel may be counsel to the Depositor or any of its
Affiliates, and may include any of its employees) and the written advice of
such 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; the Property Trustee shall have the right at
any time to seek instructions concerning the administration of this Trust
Agreement from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Trust Agreement at the request
or direction of any of the Securityholders pursuant to this Trust
Agreement, unless such Securityholders shall have offered to the Property
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
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(h) the Property 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, consent, order, approval,
bond, debenture, note or other evidence of indebtedness or other paper or
document, unless requested in writing to do so by one or more
Securityholders, but the Property Trustee may make such further inquiry or
investigation into such facts or matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
its agents or attorneys, provided that the Property Trustee shall be
responsible for its own negligence or misconduct with respect to
selection of any agent or attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder the Property Trustee (i) may request instructions from the
Holders of the Trust Securities which instructions may only be given by the
Holders of the same proportion in Liquidation Amount of the Trust
Securities as would be entitled to direct the Property Trustee under the
terms of the Trust Securities in respect of such remedy, right or action,
(ii) may refrain from enforcing such remedy or right or taking such other
action until such instructions are received, and (iii) shall be protected
in acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust Agreement,
the Property Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
Section 8.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES. The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Trust and the Depositor,
and the Trustees do not assume any responsibility for their correctness. The
Trustees shall not be accountable for the use or application by the Depositor
of the proceeds of the Debentures.
Section 8.05. MAY HOLD SECURITIES. Except as provided in the
definition of the term "Outstanding" in Article I, any Trustee or any other
agent of any Trustee or the Trust, in its individual or any other capacity, may
become the owner or pledgee of Trust Securities and, subject to Sections 8.8 and
8.13, may otherwise deal with the Trust with the same rights it would have if it
were not a Trustee or such other agent.
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Section 8.06. COMPENSATION; INDEMNITY; FEES.
The Trust shall:
(a) pay to the Trustees from time to time reasonable compensation
for all services rendered by them hereunder and in the case of the
Property Trustee, such compensation as is separately agreed by the
Depositor and the Property Trustee (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust); and
(b) except as otherwise expressly provided herein, reimburse the
Trustees upon request for all reasonable expenses, disbursements and
advances incurred or made by the Trustees in accordance with any
provision of this Trust Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith.
The Depositor agrees to indemnify each of the Trustees or any
predecessor Trustee for, and to hold the Trustees harmless against, any loss,
damage, claims, liability, tax, penalty or expense of any kind and nature
whatsoever incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of this Trust Agreement,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder. The provisions of this Section 8.06 shall survive the
termination of this Trust Agreement. To secure the Trustees' rights under this
Section 806, the Property Trustee shall have a lien against the Trust Property
which lien shall be subordinate to the rights of the Securityholders but prior
to the rights of Depositor as to any Trust Property.
Section 8.07. CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF
TRUSTEES.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that
is a national or state chartered bank and eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of at
least $50,000,000. If any such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or
examining authority, then for the purposes of this Section and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Property
Trustee with respect to the Trust Securities 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.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who
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is at least 21 years of age or a legal entity that shall act through one or more
persons authorized to bind that entity.
(c) There shall at all times be a Trustee with respect to the Trust
Securities that shall either be (i) a natural person who is at least 21 years
of age and a resident of the State of Delaware or (ii) a legal entity with its
principal place of business in the State of Delaware and that otherwise meets
the requirements of applicable Delaware law that shall act through one or more
persons authorized to bind such entity.
Section 8.08. CONFLICTING INTERESTS. If the Property Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Property Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Trust Agreement.
Section 8.09. CO-TRUSTEES AND SEPARATE TRUSTEE. Unless an Event of
Default shall have occurred and be continuing, at any time or times, for the
purpose of meeting the legal requirements of the Trust Indenture Act or of
any jurisdiction in which any part of the Trust Property may at the time be
located, the Depositor and the Administrative Trustees, by agreed action of
the majority of such Trustees, shall have power to appoint, and upon the
written request of the Administrative Trustees, the Depositor shall for such
purpose join with the Administrative Trustees in the execution, delivery, and
performance of all instruments and agreements necessary or proper to appoint
one or more Persons approved by the Property Trustee either to act as
co-trustee, jointly with the Property Trustee, of all or any part of such
Trust Property, or to the extent required by law, to act as separate trustee
of any such property, in either case with such powers as may be provided in
the instrument of appointment, and to vest in such Person or Persons in the
capacity aforesaid, any property, title, right or power deemed necessary or
desirable, subject to the other provisions of this Trust Agreement. If the
Depositor does not join in such appointment within 15 days after the receipt
by it of a request so to do, or in case a Debenture Event of Default has
occurred and is continuing, the Property Trustee alone shall also have the
power to make such appointment. Any co-trustee or separate trustee appointed
pursuant to this Section shall satisfy the requirements of Section 8.07.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged, and delivered
by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed by one or more
Administrative Trustees, and the Trust Securities shall be delivered by the
Property Trustee, and all rights, powers, duties, and obligations hereunder
in respect of the custody of securities, cash and other personal property
held by, or required to be deposited or pledged
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with, the Trustees specified hereunder, shall be exercised, solely by such
Trustees and not by such co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred
or imposed upon the Property Trustee in respect of any property
covered by such appointment shall be conferred or imposed upon and
exercised or performed by the Property Trustee or by the Property
Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any jurisdiction
in which any particular act is to be performed, the Property Trustee
shall be incompetent or unqualified to perform such act, in which
event such rights, powers, duties, and obligations shall be exercised
and performed by such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may
accept the resignation of or remove any co-trustee or separate trustee
appointed under this Section, and, in case a Debenture Event of
Default has occurred and is continuing, the Property Trustee shall
have power to accept the resignation of, or remove, any such
co-trustee or separate trustee without the concurrence of the
Depositor. Upon the written request of the Property Trustee, the
Depositor shall join with the Property Trustee in the execution,
delivery, and performance of all instruments and agreements necessary
or proper to effectuate such resignation or removal. A successor to
any co-trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property
Trustee, or any other trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any act
of a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate
trustee.
Section 8.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. No
resignation or removal of any Trustee (the "Relevant Trustee") and no
appointment of a successor Relevant Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Relevant
Trustee in accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee
may resign at any time with respect to the Trust Securities by giving written
notice thereof to the
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Securityholders. If the instrument of acceptance by a successor Relevant
Trustee required by Section 8.11 shall not have been delivered to the Relevant
Trustee within 30 days after the giving of such notice of resignation, the
resigning Relevant Trustee may petition, at the expense of the Trust, any court
of competent jurisdiction for the appointment of a successor Relevant Trustee
with respect to the Trust Securities.
Subject to the following sentence, any of the Trustees may be removed
at any time by Act of the Common Securityholder. If a Debenture Event of
Default shall have occurred and be continuing, the Property Trustee may be
removed at such time by Act of the Holders of a majority in Liquidation Amount
of the Outstanding Capital Securities, delivered to the Property Trustee (in
its individual capacity and on behalf of the Trust). An Administrative Trustee
may be removed by the Common Securityholder at any time.
If the Relevant Trustee shall resign, be removed or become incapable
of continuing to act as Relevant Trustee, or if a vacancy shall occur in the
office of any Trustee for any cause, at a time when no Debenture Event of
Default shall have occurred and be continuing, the Common Securityholder, by Act
of the Common Securityholder delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees with respect to the
Trust Securities and the Trust, and the retiring Relevant Trustee shall comply
with the applicable requirements of Section 8.11. If the Property Trustee shall
resign, be removed or become incapable of continuing to act as the Property
Trustee at a time when a Debenture Event of Default shall have occurred and be
continuing, the Capital Securityholders, by Act of the Securityholders of a
majority in Liquidation Amount of the Capital Securities then Outstanding
delivered to the retiring Relevant Trustee, shall promptly appoint a successor
Relevant Trustee or Trustees with respect to the Trust Securities and the Trust,
and such successor Trustee shall comply with the applicable requirements of
Section 8.11. If an Administrative Trustee shall resign, be removed or become
incapable of continuing to act as Administrative Trustee at a time when a
Debenture Event of Default shall have occurred and be continuing, the Common
Securityholder may appoint a successor Administrative Trustee, which successor
Trustee shall comply with the applicable requirements of Section 8.11 or the
Common Securityholder may reduce the number of Administrative Trustees pursuant
to Section 8.17(a). If no successor Relevant Trustee with respect to the Trust
Securities shall have been so appointed by the Common Securityholder or the
Capital Securityholders and accepted appointment in the manner required by
Section 8.11, any Securityholder who has been a Securityholder of Trust
Securities 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 Relevant Trustee with respect to the Trust
Securities.
The Property Trustee shall give notice of each resignation and each
removal of the Property Trustee with respect to the Trust Securities and the
Trust and each appointment of a successor Property Trustee with respect to the
Trust Securities and the Trust to all Securityholders in the manner provided in
Section 10.09 and shall give notice to the Depositor. Each notice shall include
the name of the successor Property Trustee with respect to the Trust Securities
and the Trust and the address of its Corporate Trust Office.
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Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Property Trustee who
is a natural person dies or becomes incompetent or incapacitated, the vacancy
created by such death, incompetence or incapacity may be filled by (a) the
unanimous act of remaining Administrative Trustees if there are at least two
of them prior to such vacancy or (b) otherwise by the Depositor (with the
successor in each case being an individual who satisfies the eligibility
requirement for Administrative Trustees set forth in Section 8.07).
Additionally, notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event the Depositor believes that any Administrative
Trustee or a Property Trustee who is a natural person, as the case may be,
has become incompetent or incapacitated, the Depositor, by notice to the
remaining Trustees, may terminate the status of such Person as an
Administrative Trustee or a Property Trustee, as the case may be (in which
case the vacancy so created will be filled in accordance with the preceding
sentence).
Section 8.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. In case of the
appointment hereunder of a successor Relevant Trustee with respect to all Trust
Securities and the Trust, every such successor Relevant Trustee so appointed
shall execute, acknowledge and deliver to the Trust and to the retiring Relevant
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Relevant Trustee shall become effective and such
successor Relevant Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Relevant Trustee; but, on the request of the Depositor or the successor Relevant
Trustee, such retiring Relevant Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Relevant
Trustee all the rights, powers and trusts of the retiring Relevant Trustee and
shall duly assign, transfer and deliver to such successor Relevant Trustee all
property and money held by such retiring Relevant Trustee hereunder.
In case of the appointment hereunder of a successor Relevant Trustee
with respect to the Trust Securities and the Trust, the retiring Relevant
Trustee and each successor Relevant Trustee with respect to the Trust Securities
shall execute and deliver an amendment hereto wherein each successor Relevant
Trustee shall accept such appointment and which (a) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the Trust Securities and
the Trust and (b) shall add to or change any of the provisions of this Trust
Agreement as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Relevant Trustee, it being understood
that nothing herein or in such amendment shall constitute such Relevant Trustees
co-trustees of the same trust and that each such Relevant Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Relevant Trustee and upon the
execution and delivery of such amendment the resignation or removal of the
retiring Relevant Trustee shall become effective to the extent provided therein
and each such successor Relevant Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Relevant Trustee with respect to the Trust Securities and the
Trust; but, on request of the Trust or any successor Relevant Trustee such
retiring Relevant Trustee shall duly assign, transfer and deliver to such
successor Relevant
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Trustee all Trust Property, all proceeds thereof and money held by such retiring
Relevant Trustee hereunder with respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
Section 8.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS OF A TRUSTEE. Any Person into which the Property Trustee or any
Administrative Trustee which is not a natural person may be merged or
converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which such Relevant Trustee shall
be a party, or any Person succeeding to all or substantially all the corporate
trust business of any such Relevant Trustee, shall be the successor of such
Relevant Trustee hereunder, provided such Person 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.
Section 8.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR OR
TRUST. In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust or any other obligor upon the
Trust Securities or the property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Trust Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and to file
such other papers or documents as may be necessary or advisable in order to have
the claims of the Property Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the
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reasonable compensation, expenses, disbursements and advances of the Property
Trustee, its agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement adjustment or compensation affecting the
Trust Securities or the rights of any Holder thereof or to authorize the
Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 8.14. REPORTS BY PROPERTY TRUSTEE.
(a) Within 60 days after December 31 of each year commencing with
December 31, 1997 the Property Trustee shall transmit by mail to all
Securityholders, as their names and addresses appear in the Securities Register,
and to the Depositor, a brief report dated as of such December 31 with respect
to:
(i) its eligibility under Section 8.07 or, in lieu thereof, if to the
best of its knowledge it has continued to be eligible under said Section, a
written statement to such effect;
(ii) a statement that the Property Trustee has complied with all of its
obligations under this Trust Agreement during the twelve-month period (or, in
the case of the initial report, the period since the Closing Date) ending with
such December 31 or, if the Property Trustee has not complied in any material
respect with such obligations, a description of such non-compliance; and
(iii) any change in the property and funds in its possession as Property
Trustee since the date of its last report and any action taken by the Property
Trustee in the performance of its duties hereunder which it has not previously
reported and which in its opinion materially affects the Trust Securities.
(b) In addition the Property Trustee shall transmit to Securityholders
such reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Property Trustee with the each stock exchange, the
Nasdaq National Market or such other interdealer quotation system or
self-regulatory organization upon which the Trust Securities are listed or
traded, with the Commission and with the Depositor.
Section 8.15. REPORTS TO THE PROPERTY TRUSTEE. Each of the Depositor
and the Administrative Trustees on behalf of the Trust shall provide to the
Property Trustee such documents, reports and information as required by
Section 314 of the Trust Indenture Act (if any) and the compliance certificate
required by Section 314 of the Trust Indenture Act in the form, in the manner
and at the times required by Section 314 of the Trust Indenture Act.
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Section 8.16. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. Each
of the Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Trust Agreement that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) of the Trust Indenture Act may be given in the form of an Officers'
Certificate.
Section 8.17. NUMBER OF TRUSTEES.
(a) The number of Trustees shall be four, provided that the Depositor,
by written instrument may increase or decrease the number of Administrative
Trustees.
(b) If a Trustee ceases to hold office for any reason and the number
of Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not
operate to annul, dissolve or terminate the Trust. Whenever a vacancy in the
number of Administrative Trustees shall occur, until such vacancy is filled by
the appointment of an Administrative Trustee in accordance with Section 8.10,
the Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the
duties imposed upon the Administrative Trustees by this Trust Agreement.
Section 8.18. DELEGATION OF POWER.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Section
2.07(a), including any registration statement or amendment thereto filed with
the Commission, or making any other governmental filing; and
(b) The Administrative Trustees shall have power to delegate from time
to time to such of their number or to the Depositor the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Administrative Trustees or otherwise as the Administrative Trustees may
deem expedient, to the extent such delegation is not prohibited by applicable
law or contrary to the provisions of the Trust, as set forth herein.
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ARTICLE IX
Termination and Liquidation
Section 9.01. TERMINATION UPON EXPIRATION DATE. The Trust shall
automatically terminate on ________________, 2032, (the "Expiration Date")
following the distribution of the Trust Property in accordance with Section
9.04.
Section 9.02. EARLY TERMINATION. Upon the first to occur of any of
the following events (such first occurrence, an "Early Termination Event"):
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) the written direction to the Property Trustee from the
Depositor at any time (which direction is optional and wholly within
the discretion of the Depositor) to terminate the Trust and distribute
Debentures to the Securityholders in exchange for the Capital
Securities;
(c) the redemption of all of the Capital Securities in connection
with the redemption of all the Debentures; and
(d) the entry of an order for dissolution of the Trust shall have been
entered by a court of competent jurisdiction.
then the Trustees shall take such action as is required by Section 4.02 or
Section 9.04, as applicable, and as soon as practicable after the occurrence of
any event referred to in this Section 9.02, the Trustees shall cause to be filed
a certificate of cancellation relating to the Trust with the Secretary of State
of the State of Delaware.
Section 9.03. TERMINATION. The respective obligations and
responsibilities of the Trustees and the Trust created and continued hereby
shall terminate upon the latest to occur of the following: (a) the distribution
by the Property Trustee to Securityholders upon the liquidation of the Trust
pursuant to Section 9.04, or upon the redemption of all of the Trust Securities
pursuant to Section 4.02, of all amounts required to be distributed hereunder
upon the final payment of the Trust Securities; (b) the payment of any expenses
owed by the Trust; and (c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
Section 9.04. LIQUIDATION.
(a) If an Early Termination Event specified in clause (a), (b) or (d)
of Section 9.02 occurs, the Trust shall be liquidated by the Trustees as
expeditiously as the Trustees determine to be possible by distributing, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, to each Securityholder a Like Amount of Debentures, subject to Section
9.04(d).
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Notice of liquidation shall be given by the Administrative Trustees by
first-class mail, postage prepaid, mailed not later than 30 nor more than
60 days prior to the Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust Securities
will no longer be deemed to be Outstanding and any Trust Securities Certificates
not surrendered for exchange will be deemed to represent a Like Amount of
Debentures; and
(iii) provide such information with respect to the mechanics by which
Holders may exchange Trust Securities Certificates for Debentures, or if
Section 9.04(d) applies, receive a Liquidation Distribution, as the
Administrative Trustees or the Property Trustee shall deem appropriate.
(b) Except where Section 9.02(c) or 9.04(d) applies, in order to
effect the liquidation of the Trust and distribution of the Debentures to
Securityholders, the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debentures in exchange for the
Outstanding Trust Securities Certificates.
(c) Except where Section 9.02 (c) or 9.04(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) The Depository Trust Company ("DTC") or its nominee, as the
record Holder of the Capital Securities, will receive a registered global
certificate or certificates representing the Debentures to be delivered upon
such distribution, (iii) any Capital Securities Certificates not held by DTC
or its nominee will be deemed to represent a Like Amount of Debentures,
bearing accrued and unpaid interest in an amount equal to the accumulated and
unpaid Distributors on such Trust Certificates until such certificates are so
surrendered (and until such certificates are so surrendered, no payments or
interest or principal will be made to Holders of Trust Securities Certificates
with respect to such Debentures), (iv) certificates representing a Like Amount
of Debentures will be issued to the Holder of the Common Securities
Certificates, upon surrender of such certificates to the Administrative
Trustees or their agent for exchange, (v) all rights of Securityholders
holding Trust Securities will cease, except the right of such Securityholders
to receive Debentures upon surrender of Trust Securities Certificates, and
(vi) the Depositor shall use its reasonable efforts to have the Debentures
listed on the New York Stock Exchange or on such other exchange, interdealer
quotation system or self-regulatory organization as the Capital Securities are
then listed, if any.
(d) In the event that, notwithstanding the other provisions of this
Section 9.04, whether because of an order for dissolution entered by a court of
competent jurisdiction or
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payment at the stated maturity thereof of all principal of and interest on the
Debentures or otherwise, distribution of the Debentures in the manner provided
herein is determined by the Property Trustee not to be practical, the Trust
Property shall be liquidated, and the Trust shall be dissolved, wound-up or
terminated, by the Property Trustee in such manner as the Property Trustee
determines. In such event, on the date of the dissolution, winding-up or
other termination of the Trust, Securityholders will be entitled to receive
out of the assets of the Trust available for distribution to Securityholders,
after satisfaction of liabilities to creditors, an amount equal to the
Liquidation Amount per Trust Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"). If, upon any such dissolution, winding up or
termination, the Liquidation Distribution can be paid only in part because the
Trust has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding sentence, the
amounts payable by the Trust on the Trust Securities shall be paid on a PRO
RATA basis (based upon Liquidation Amounts). The Holder of the Common
Securities will be entitled to receive Liquidation Distributions upon any such
dissolution, winding-up or termination PRO RATA (determined as aforesaid) with
Holders of Capital Securities, except that, if an Event of Default specified
in Section 501(1) or 501(2) of the Indenture has occurred and is continuing,
the Capital Securities shall have a priority over the Common Securities. In
the event the Capital Securities are issued in certificated form, the
Liquidation Distribution will be payable at (i) the Corporate Trust Office of
the Property Trustee, (ii) the principal office of any Paying Agent, or (iii)
the principal office of the Securities Registrar and Transfer Agent; PROVIDED
THAT payment of any Liquidation Distribution may be made, at the option of
the Administrative Trustees, by check mailed to the address of the Person
entitled thereto as such address shall appear on the Securities Registrar or
by wire transfer in immediately available funds at such place and to such
account as may be designated by the Person entitled thereto as specified in
the Securities Register.
Section 9.05. MERGER, CONSOLIDATION, AMALGAMATION OR REPLACEMENT OF
THE TRUST. The Trust may not merge, consolidate or amalgamate with or
into, or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any corporation or other Person,
except pursuant to this Section 9.5. At the request of the Depositor, with
the consent of the Administrative Trustees and without the consent of the
Holders of the Capital Securities or the Property Trustee, the Trust may
merge, consolidate or amalgamate with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to a
trust organized as such under the laws of any State; provided, that (i) such
successor entity either (a) expressly assumes all of the obligations of the
Trust with respect to the Capital Securities or (b) substitutes for the
Capital Securities other securities having substantially the same terms as
the Capital Securities (the "Successor Securities") so long as the Successor
Securities rank the same as the Capital Securities rank in priority with
respect to distributions and payments upon liquidation, redemption and
otherwise, (ii) the Depositor expressly appoints a trustee of such successor
entity possessing the same powers and duties as the Property Trustee as the
holder of the Debentures, (iii) the Successor Securities are listed or
quoted, or any Successor Securities will be listed or quoted upon
notification of issuance, on any national securities exchange, the Nasdaq
National Market or other organization on which the Capital Securities are
then quoted or listed, if any, (iv) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the Capital
Securities (including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization, (v) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does
not adversely affect the rights, preferences and privileges of the Holders of
the Capital Securities (including any Successor Securities) in any material
respect, (vi) such successor entity has a purpose substantially identical to
that of the Trust, (vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Depositor has received an
opinion from independent counsel to the Trust experienced in such matters to
the effect that (a) such merger, consolidation, amalgamation,
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replacement, conveyance, transfer or lease does not adversely affect the
rights, preferences and privileges of the Holders of the Capital Securities
(including any Successor Securities) in any material respect, and (b)
following such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, neither the Trust nor such successor entity will be
required to register as an investment company under the 1940 Act and (viii)
the Depositor or any permitted successor or assignee owns all of the common
securities of such successor entity and guarantees the obligations of such
successor entity under the Successor Securities at least to the extent
provided by the Guarantee. Notwithstanding the foregoing, the Trust shall
not, except with the consent of Holders of 100% in Liquidation Amount of the
Capital Securities, consolidate, amalgamate, merge with or into, or be
replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to any other entity or permit any other entity
to consolidate, amalgamate or merge with or into, or replace it if such
consolidation, amalgamation, merger, replacement, conveyance, transfer or
lease would cause the Trust or the successor entity to be classified as other
than a grantor trust for United States Federal income tax purposes.
ARTICLE X
Miscellaneous Provisions
Section 10.01. EXPENSE AGREEMENT. It is the contemplation of the
parties that the Expense Agreement shall be entered into no later than
_______________, 1997.
Section 10.02. LIMITATION OF RIGHTS OF SECURITYHOLDERS. The death
or incapacity of any person having an interest, beneficial or otherwise, in
Trust Securities shall not operate to terminate this Trust Agreement, nor
entitle the legal representatives or heirs of such person or any
Securityholder for such person, to claim an accounting, take any action or
bring any proceeding in any court for a partition or winding up of the
arrangements contemplated hereby, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
Section 10.03. AMENDMENT.
(a) This Trust Agreement may be amended from time to time by the
Trustees and the Depositor, without the consent of any Securityholders, (i) to
cure any ambiguity, correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Trust Agreement, which
shall not be inconsistent with the other provisions of this Trust Agreement,
or (ii) to modify, eliminate or add to any provisions of this Trust Agreement
to such extent as shall be necessary to ensure that the Trust will be
classified for United States Federal income tax purposes as a grantor trust at
all times that any Trust Securities are outstanding or to ensure that the
Trust will not be required to register as an "investment company" under the
Investment Company Act of 1940, as amended; PROVIDED, HOWEVER, that in the
case of either clause (i) or clause (ii), such action shall not adversely
affect in any material respect the interests of any Securityholder and any
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amendments of this Trust Agreement shall become effective when notice thereof is
given to the Securityholders.
(b) Except as provided in Section 10.03(c) hereof, any provision of
this Trust Agreement may be amended by the Trustees and the Depositor with (i)
the consent of Trust Securityholders representing not less than a majority in
Liquidation Amount of the Trust Securities then Outstanding and (ii) the
receipt by the Trustees of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the Trustees in accordance
with such amendment will not affect the Trust's status as a grantor trust for
United States Federal income tax purposes or the Trust's exemption from status
as an "investment company" under the Investment Company Act of 1940, as
amended.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.03 or 6.06 hereof), this
Trust Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date; notwithstanding
any other provision herein without the unanimous consent of the Securityholders
(such consent being obtained in accordance with Section 6.03 or 6.06 hereof),
paragraph (b) of this Section 10.03 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Trust to (i) fail or cease to qualify, as evidenced by an
Opinion of Counsel, for an exemption from status of an "investment company"
under the Investment Company Act of 1940, as amended, or (ii) fail or cease
to be classified, as evidenced by an Opinion of Counsel, as a grantor trust
for United States Federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor and the Administrative Trustees, this
Trust Agreement may not be amended in a manner which imposes any additional
obligation on the Depositor or the Administrative Trustees.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustees shall promptly provide to the Depositor a copy of
such amendment.
(g) The Property Trustee shall not be required to enter into any
amendment to this Trust Agreement which affects its own rights, duties or
immunities under this Trust Agreement. The Property Trustee shall be entitled
to receive an Opinion of Counsel and an Officer's Certificate stating that any
amendment to this Trust Agreement is in compliance with this Trust Agreement.
Section 10.04. SEPARABILITY. In case any provision in this Trust
Agreement or in the Trust Securities Certificates shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
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SECTION 10.05. GOVERNING LAW. THIS TRUST AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE DEPOSITOR, THE TRUST AND
THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
DELAWARE WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS PROVISIONS.
Section 10.06. PAYMENTS DUE ON NON-BUSINESS DAY. If the date fixed
for any payment on any Trust Security shall be a day which is not a Business
Day, then such payment need not be made on such date but may be made on the
next succeeding day which is a Business Day (except as otherwise provided in
Section 4.01(a) and 4.02(d)), with the same force and effect as though made on
the date fixed for such payment, and no Distribution shall accumulate on such
unpaid amount thereon for the period after such date.
Section 10.07. SUCCESSORS. This Trust Agreement shall be binding
upon and shall inure to the benefit of any successor to the Depositor, the Trust
or any Relevant Trustee, including any successor by operation of law. Except in
connection with a consolidation, merger or sale involving the Depositor that is
permitted under Article Eight of the Indenture and pursuant to which the
assignee agrees in writing to perform the Depositor's obligations hereunder, the
Depositor shall not assign its obligations hereunder.
Section 10.08. HEADINGS. The Article and Section headings are for
convenience only and shall not affect the construction of this Trust Agreement.
Section 10.09. REPORTS, NOTICES AND DEMANDS. Any report, notice,
demand or other communication which by any provision of this Trust Agreement is
required or permitted to be given or served to or upon any Securityholder or the
Depositor shall be given or served in writing by deposit thereof, postage
prepaid, in the United States mail, hand delivery or facsimile transmission, in
each case, addressed, (a) in the case of a Capital Securityholder, to such
Capital Securityholder as such Securityholder's name and address may appear on
the Securities Register; and (b) in the case of the Common Securityholder or the
Depositor, to AmerUs Life Holdings, Inc., 418 Sixth Avenue, Des Moines, Iowa
50306-2499, Attention: Secretary, facsimile no.: (515) 283-3402. Such notice,
demand or other communication to or upon a Securityholder shall be deemed to
have been sufficiently given or made, for all purposes, upon hand delivery,
mailing or transmission.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Trust, the Property Trustee or the Administrative Trustees shall be given in
writing addressed (until another address is published by the Trust) as follows:
(a) with respect to the Property Trustee, to Wilmington Trust Company, Rodney
Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001,
Attention: Corporate Trust Administration; and (b) with respect to the
Administrative Trustees, to them at the address above for notices to the
Depositor, marked "Attention: Administrative Trustees of AmerUs Capital I c/o
Secretary." Such notice, demand or other communication to or
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upon the Trust or the Property Trustee shall be deemed to have been sufficiently
given or made only upon actual receipt of the writing by the Trust or the
Property Trustee.
Section 10.10. AGREEMENT NOT TO PETITION. Each of the Trustees and
the Depositor agree for the benefit of the Securityholders that, until at least
one year and one day after the Trust has been terminated in accordance with
Article IX, they shall not file, or join in the filing of, a petition against
the Trust under any bankruptcy, reorganization, arrangement, insolvency,
liquidation or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in
the commencement of any proceeding against the Trust under any Bankruptcy Law.
In the event the Depositor takes action in violation of this Section 10.10, the
Property Trustee agrees, for the benefit of Securityholders, that at the expense
of the Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Property Trustee
or the Trust may assert. The provisions of this Section 10.10 shall survive the
termination of this Trust Agreement.
Section 10.11. TRUST INDENTURE ACT; CONFLICT WITH TRUST INDENTURE
ACT.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a Trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with the
duties imposed by Section 310 to 317, inclusive, of the Trust Indenture Act
through operation of Section 318(c) thereof, such imposed duty shall control.
If any provision of this Trust Agreement modifies or excludes any provision of
the Trust Indenture Act which may be so modified or excluded, the latter
provision shall be deemed to apply to this Trust Agreement as so modified or
excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
Section 10.12. RIGHTS UNDER INDENTURE. The Trust may not assign any
of its rights under the Indenture without the prior written consent of the
Depositor.
Section 10.13. EFFECTIVENESS. This Trust Agreement shall become
effective when signed by the Depositor and the Bank. Each Administrative
Trustee shall assume the duties of an Administrative Trustee hereunder when he
signs the signature page hereof.
Section 10.14. INTENTION OF THE PARTIES. It is the intention of the
parties hereto that the Trust not be characterized for United States Federal
income tax purposes as a corporation or a partnership, but rather that the
Trust be characterized as a grantor trust or otherwise in a manner and that
each Owner be treated as owning an undivided beneficial interest in the assets
of the Trust. The provisions of this Trust Agreement shall be interpreted to
further this intention of the parties.
-52-
<PAGE>
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR ON
BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST
SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND AGREEMENT
TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE
INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER
AND SUCH OTHERS THAT THOSE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE
BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER
AND SUCH OTHERS.
AMERUS LIFE HOLDINGS, INC.
By:
-------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Property Trustee
By:
-------------------------------------
Name:
Title:
,
----------------------------------------
Michael E. Sproule,
as Administrative Trustee
,
----------------------------------------
Michael G. Fraizer,
as Administrative Trustee
,
----------------------------------------
James A. Smallenberger,
as Administrative Trustee
-53-
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
OF
AMERUS CAPITAL I
THIS Certificate of Trust of AmerUs Capital I (the "Trust"), dated ,
1996, is being duly executed and filed by Wilmington Trust Company, a Delaware
banking corporation, as trustee, to form a business trust under the Delaware
Business Trust Act (12 DEL. C. Section 3801 ET SEQ.)
1. NAME. The name of the business trust being formed hereby is AmerUs
Capital I.
2. DELAWARE TRUSTEE. The name and business address of the trustee of the
Trust in the State of Delaware is Wilmington Trust Company, Rodney Square North,
1100 North Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate
Trust Administration.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust,
has executed this Certificate of Trust as of the date first-above written.
Wilmington Trust Company,
as trustee
By:
---------------------------
Name:
Title:
<PAGE>
EXHIBIT B
DTC LETTER OF REPRESENTATIONS
January ___, 1997
The Depository Trust Company
55 Water Street, 49th Floor
New York, New York 10041-0099
Attention: General Counsel's Office
Re: AmerUs Capital I _____% Capital Securities, Series A
[CUSIP 03073B 20 0]
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters
relating to the issuance and deposit with The Depository Trust Company ("DTC")
of the AmerUs Capital I _____% Capital Securities, Series A (the "Capital
Securities"), of AmerUs Capital I, a Delaware business trust (the "Issuer"),
created pursuant to a Trust Agreement between AmerUs Life Holdings, Inc. (the
"Company") and Wilmington Trust Company, as Trustee. The Trust Agreement has
been amended and restated (the "Amended and Restated Trust Agreement") among the
Company, Wilmington Trust Company, as Property Trustee, and Michael E. Sproule,
Michael G. Fraizer and James A. Smallenberger, as Administrative Trustees (the
Property Trustee and the Administrative Trustees sometimes are collectively
referred to herein as the "Trustees"). Wilmington Trust Company is acting as
Agent for DTC hereunder (Wilmington Trust Company in its capacity as Property
Trustee and as Agent is referred to hereunder as "Agent"). The payment of
distributions on the Capital Securities and payments due upon liquidation of the
Issuer or redemption of the Capital Securities, to the extent the Issuer has
funds available for the payment thereof, are guaranteed by the Company to the
extent set forth in a Guarantee Agreement, dated January ____, 1997, between the
Company and Wilmington Trust Company, as Guarantee Trustee, with respect to the
Capital Securities. The Company and the Issuer propose to sell the Capital
Securities to Goldman, Sachs & Co. ("Goldman Sachs") pursuant to an Underwriting
Agreement, dated January _____, 1997, by and among Goldman Sachs, the Issuer,
the Company and AmerUs Life Insurance Company, an Iowa stock life insurance
company, and Goldman Sachs wish to take delivery of the Capital Securities
through DTC.
To induce DTC to accept the Capital Securities as eligible for
deposit at DTC, and to act in accordance with DTC's Rules with respect to the
Capital Securities, the Issuer and the Agent make the following representations
to DTC:
1. Prior to the closing of the sale of the Capital Securities
to Goldman Sachs, which is expected to occur on or about _____, 1997, there
shall be deposited with DTC
B-1
<PAGE>
one or more global certificates (individually and collectively, the"Global
Certificate") registered in the name of DTC's nominee, Cede & Co., representing
an aggregate of up to 86,250 Capital Securities and bearing the following
legend:
Unless this Capital Security is presented by an
authorized representative of The Depository Trust
Company, a New York corporation ("DTC"), to AmerUs
Capital I or its agent for registration of
transfer, exchange or payment, and any Capital
Security issued is registered in the name of Cede &
Co. or in such other name as is requested by an
authorized representative of DTC (and any payment
hereon is made to Cede & Co. or to such other
entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
2. The Amended and Restated Trust Agreement of the Issuer
provides for the voting by holders (with no provision for a subsequent holder of
a Capital Security to revoke any consent or vote of a previous holder of such
Capital Security, although subsequent votes on the same issue are permitted) of
the Capital Securities under certain limited circumstances. The Issuer shall
establish a record date for such purposes and shall, to the extent possible,
give DTC notice of such record date not less than 15 calendar days in advance of
such record date.
3. In the event of a stock split, conversion, recapitalization,
reorganization or any other similar transaction resulting in the cancellation of
all or any part of the Capital Securities outstanding, the Issuer or the Agent
shall send DTC a notice of such event as soon as the information is available
but at least 5 business days prior to the effective date of such event.
4. In the event of distribution on, or an offering or issuance
of rights with respect to, the Capital Securities outstanding, the Issuer or the
Agent shall send DTC a notice specifying: (a) the amount of and conditions, if
any, applicable to the payment of any such distribution or any such offering or
issuance of rights; (b) any applicable expiration or deadline date, or any date
by which any action on the part of the holders of Capital Securities is
required; and (c) the date any required notice is to be mailed by or on behalf
of the Issuer to holders of Capital Securities or published by or on behalf of
the Issuer (whether by mail or publication, the "Publication Date"). Such
notice shall be sent to DTC by a secure means (e.g., legible telecopy,
registered or certified mail, overnight delivery) in a timely manner designed to
assure that such notice is in DTC's possession no later than the close of
business on the business day before the Publication Date. The Issuer or the
Agent will forward such notice either in a separate secure transmission for each
CUSIP number or in a secure transmission for multiple CUSIP numbers (if
applicable) that includes a manifest or list of each CUSIP number submitted in
that transmission. (The party sending such notice shall have a method to verify
subsequently the use of such means and the timeliness of such notice.) The
Publication Date shall be not less than 30 calendar days
B-2
<PAGE>
nor more than 60 calendar days prior to the payment of any such distribution or
any such offering or issuance of rights with respect to the Capital Securities.
5. In the event of a redemption by the Issuer of the Capital
Securities, notice specifying the terms of the redemption and the Publication
Date of such notice shall be sent by the Issuer or the Agent to DTC not less
than 30 calendar days prior to such event by a secure means in the manner set
forth in paragraph 4. Such redemption notice shall be sent to DTC's Call
Notification Department at (516) 227-4164 or (516) 227-4190, and receipt of such
notice shall be confirmed by telephoning (516) 227-4070. Notice by mail or by
any other means shall be sent to:
Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, New York 11530-4719
6. In the event of any invitation to tender the Capital
Securities, notice specifying the terms of the tender and the Publication Date
of such notice shall be sent by the Issuer or the Agent to DTC by a secure means
and in a timely manner as described in paragraph 4. Notices to DTC pursuant to
this paragraph and notices of other corporate actions (including mandatory
tenders, exchanges and capital changes), shall be sent, unless notification to
another department is expressly provided for herein, by telecopy to DTC's
Reorganization Department at (212) 709-1093 or (212) 709-1094 and receipt of
such notice shall be confirmed by telephoning (212) 709-6884, or by mail or any
other means to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
7. All notices and payment advices sent to DTC shall contain
the CUSIP number or numbers of the Capital Securities and the accompanying
designation of the Capital Securities, which, as of the date of this letter, is
"AmerUs Capital I _____% Capital Securities, Series A".
8. After establishing the amount of payment to be made on the
Capital Securities, the Issuer or the Agent will notify DTC's Dividend
Department of such payment 5 business days prior to payment date. Notices to
DTC's Dividend Department by telecopy shall be sent to (212) 709-1723. Such
notices by mail or by any other means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
B-3
<PAGE>
The Issuer or the Agent shall confirm DTC's receipt of such
telecopy by telephoning the Dividend Department at (212) 709-1270.
9. Distribution payments or other cash payments with respect to
the Capital Securities evidenced by the Global Certificate shall be governed by
DTC's current Principal and Income Payments Rider, a copy of which is attached
hereto as Annex I. For purposes of this letter, the term "Agent" used in Annex
I shall be deemed to refer to Wilmington Trust Company.
10. DTC may direct the Issuer and the Agent to use any other
telecopy number or address of DTC as the number or address to which notices or
payments may be sent.
11. In the event of a conversion, redemption, or any other
similar transaction (e.g., tender made and accepted in response to the Issuer's
or the Agent's invitation) necessitating a reduction in the aggregate number of
Capital Securities outstanding evidenced by the Global Certificate, DTC, in its
discretion: (a) may request the Issuer or the Agent to issue and countersign a
new Global Certificate; or (b) may make an appropriate notation on the Global
Certificate indicating the date and amount of such reduction.
12. DTC may discontinue its services as securities depositary
with respect to the Capital Securities at any time by giving 90 days' prior
written notice to the Company, the Trustees and the Agent (at which time DTC
will confirm with the Company or the Agent the aggregate number of Capital
Securities deposited with it) and discharging its responsibilities with respect
thereto under applicable law; PROVIDED, HOWEVER, that if DTC is required to
discontinue its services as securities depositary with respect to the Capital
Securities pursuant to any governmental, judicial or regulatory order or decree,
and such discontinuation is required in less than 90 days from the date of such
order or decree, then DTC may discontinue such services by giving notice to the
Company, the Trustees and the Agent as soon as reasonably possible. Under such
circumstances, the Issuer may determine to make alternative arrangements for
book-entry settlement for the Capital Securities, make available one or more
separate global certificates evidencing Capital Securities to any Participant
having Capital Securities credited to its DTC account, or issue definitive
Capital Securities to the beneficial holders thereof, and in any such case, DTC
agrees to cooperate fully with the Issuer and the Agent to return the Global
Certificate, duly endorsed for transfer as directed by the Issuer or the Agent,
together with any other documents of transfer reasonably requested by the Issuer
or the Agent.
13. In the event that the Issuer determines that beneficial
owners of Capital Securities shall be able to obtain definitive Capital
Securities, the Issuer or the Agent shall notify DTC of the availability of
certificates. In such event, the Issuer or the Agent shall issue, transfer and
exchange certificates in appropriate amounts, as required by DTC and others, and
DTC agrees to cooperate fully with the Issuer and the Agent and to return the
Global Certificate, duly endorsed for transfer as directed by the Issuer or the
Agent, together with any other documents of transfer reasonably requested by the
Issuer or the Agent.
14. Wilmington Trust Company, not in its individual capacity but
solely as Property Trustee with respect to the Capital Securities described
herein, is an approved
B-4
<PAGE>
participant in DTC's "FAST" system (FAST No. 9986). Accordingly, Wilmington
Trust Company will take physical delivery of one definitive certificate,
registered in the name of DTC's nominee, Cede & Co., for each stated maturity of
such Capital Securities in the face amounts set forth below:
STATED MATURITY FACE AMOUNT
--------------- -----------
___________, 2027 [$86,250,000]
15. This letter may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
B-5
<PAGE>
Nothing herein shall be deemed to require the Agent to advance
funds on behalf of the Issuer.
Very truly yours,
AMERUS CAPITAL I
(As Issuer)
By:____________________________________
Name:
Title: Administrative Trustee
WILMINGTON TRUST COMPANY
(As Agent)
By:____________________________________
Name:
Title:
RECEIVED AND ACCEPTED:
THE DEPOSITORY TRUST COMPANY
By:________________________________
Authorized Officer
B-6
<PAGE>
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT
TO THE DEPOSITOR OR AN AFFILIATE OF THE DEPOSITOR
IN COMPLIANCE WITH APPLICABLE LAW
AND SECTION 5.10 OF THE TRUST AGREEMENT
Certificate Number Number of Common Securities
C-1
Certificate Evidencing Common Securities
of
AmerUs Capital I
[______%] Common Securities
(liquidation amount $1,000 per Common Security)
AmerUs Capital I, a statutory business trust formed under the laws of
the State of Delaware (the "Trust"), hereby certifies that AmerUs Life
Holdings, Inc. (the "Holder") is the registered owner of ________ (________)
common securities of the Trust representing undivided beneficial interests in
the assets of the Trust and designated the [______%] Common Securities
(liquidation amount $1,000 per Common Security) (the "Common Securities").
Except in accordance with Section 5.10 of the Trust Agreement (as defined
below) the Common Securities are not transferable and any attempted transfer
hereof other than in accordance therewith shall be void. The designations,
rights, privileges, restrictions, preferences and other terms and provisions
of the Common Securities are set forth in, and this certificate and the
Common Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Trust
Agreement of the Trust dated as of _____________________, 1997, among the
Holder, as Depositor, Wilmington Trust Company, as Property Trustee, the
Administrative Trustees named therein, and the holders, from time to time, of
undivided beneficial interests in the assets of the Trust, as the same may be
amended from time to time (the "Trust Agreement") including the designation
of the terms of the Common Securities as set forth therein. The Trust will
furnish a copy of the Trust Agreement to the Holder without charge upon
written request to the Trust at its principal place of business or registered
office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set forth in the
Trust Agreement.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this _______ day of ___________, 1997.
AMERUS CAPITAL I
By: _________________________________
Name:
Administrative Trustee
C-1
<PAGE>
EXHIBIT D
[IF THE CAPITAL SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT - This Capital
Security is a Book-Entry Capital Securities Certificate within the meaning of
the Trust Agreement hereinafter referred to and is registered in the name of
The Depository Trust Company, a New York corporation ("DTC") or a nominee of
DTC. This Capital Security is exchangeable for Capital Securities Certificates
registered in the name of a person other than DTC or its nominee only in the
limited circumstances described in the Trust Agreement and no transfer of this
Capital Security (other than a transfer of this Capital Security as a whole by
DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of
DTC) may be registered except in limited circumstances described in the Trust
Agreement.
Unless this Capital Security is presented by an authorized
representative of DTC to AmerUs Capital I or its agent for registration of
transfer, exchange or payment, and any Capital Securities Certificate issued
is registered in the name of Cede & Co. or in such other name as is requested
by an authorized representative of DTC (and any payment hereon is made to
Cede & Co. or to such other entity as requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof,
Cede & Co., has an interest herein.]
Certificate Number Number of Capital Securities
P-
CUSIP NO.
Certificate Evidencing Capital Securities
of
AmerUs Capital I
[_____%] Capital Securities,
Series A
(liquidation amount $1,000 per Capital Security)
AmerUs Capital I, a statutory business trust formed under the laws of
the State of Delaware (the "Trust"), hereby certifies that _________________
(the "Holder") is the registered owner of _______________ (___________)
Capital Securities of the Trust representing an undivided beneficial interest
in the assets of the Trust and designated the AmerUs Capital I [____%]
Capital Securities, Series A (liquidation amount $1,000 per Capital Security)
(the "Capital Securities"). The Capital Securities are transferable on the
books and records of the Trust, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper form for
transfer as provided in Section 5.04 of the Trust Agreement (as defined
below). The designations, rights, privileges, restrictions, preferences and
other terms and provisions of the Capital Securities are set forth in, and
this certificate and the Capital
D-1
<PAGE>
Securities represented hereby and issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Trust
Agreement of the trust dated as of _______________, 1997, among AmerUs Life
Holdings, Inc., an Iowa corporation, as Depositor, Wilmington Trust Company,
as Property Trustee, the Administrative Trustees named therein, and the
holders, from time to time, of individed beneficial interests in the assets of
the Trust, as the same may be amended from time to time (the "Trust
Agreement") including the designation of the terms of Capital Securities as
set forth therein. The Holder is entitled to the benefits of the Guarantee
Agreement entered into by AmerUs Life Holdings, Inc., an Iowa corporation,
and Wilmington Trust Company as guarantee trustee, dated as of
_______________, 1997 (the "Guarantee") to the extent provided therein. The
Trust will furnish a copy of the Trust Agreement and the Guarantee to the
Holder without charge upon written request to the Trust at its principal
place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this _______ day of _____________, 1997.
AMERUS CAPITAL I
By: ____________________________________
Name:
Administrative Trustee
D-2
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Capital
Security to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
agent to transfer this Capital Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date: ________________
Signature: ______________________________
(Sign exactly as your name appears on the other side of this Capital
Security Certificate)
Signature(s) Guaranteed:
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
D-3
<PAGE>
[Exhibit 4.1]
AMERUS LIFE HOLDINGS, INC.
TO
WILMINGTON TRUST COMPANY
Trustee
________________
Junior Subordinated Indenture
Dated as of _____________, 1997
Up to $86,250,000
[____%] Junior Subordinated Debentures, Series A
<PAGE>
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
- --------------- ---------
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . 608, 610
Section 311(a) . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . 613
Section 312(a) . . . . . . . . . . . . . . . . . . . 701
702(a)
(b) . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . 702(c)
Section 313(a) . . . . . . . . . . . . . . . . . . . 703(a)
(a)(4) . . . . . . . . . . . . . . . . . . . 101, 1004
(b) . . . . . . . . . . . . . . . . . . . 703(a)
(c) . . . . . . . . . . . . . . . . . . . 703(a)
(d) . . . . . . . . . . . . . . . . . . . 703(b)
Section 314(a) . . . . . . . . . . . . . . . . . . . 704
(b) . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . 102
Section 315(a) . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . 514
Section 316(a) . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . 502
512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . 104(c)
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . . . . . 107
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Additional Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Additional Sums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Additional Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
AmerUs Capital I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Authenticating Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board of Directors. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board Resolution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capital Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Commission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Common Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Common Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Corporate Trust Office. . . . . . . . . . . . . . . . . . . . . . . . . . 4
Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Debt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Depository. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Event of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Expense Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Extension Period. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Government Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . 5
Holder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Investment Company Event. . . . . . . . . . . . . . . . . . . . . . . . . 6
Junior Subordinated Payment . . . . . . . . . . . . . . . . . . . . . . . 6
Maturity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Parent Guarantee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Paying Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Person. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Predecessor Security. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Proceeding. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Property Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Redemption Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Security Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Security Registrar. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Special Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Tax Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trust Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trust Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Vice President. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . 9
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . .10
SECTION 104. Acts of Holders; Record Dates. . . . . . . . . . . . . . . . . .11
SECTION 105. Notices, Etc., to Trustee and the Company. . . . . . . . . . . .12
SECTION 106. Notice to Holders; Waiver. . . . . . . . . . . . . . . . . . . .12
SECTION 107. Conflict with Trust Indenture Act. . . . . . . . . . . . . . . .13
SECTION 108. Effect of Headings and Table of Contents . . . . . . . . . . . .13
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . . .13
SECTION 110. Separability Clause. . . . . . . . . . . . . . . . . . . . . . .13
SECTION 111. Benefits of Indenture. . . . . . . . . . . . . . . . . . . . . .13
SECTION 112. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . .14
SECTION 113. Non-Business Days. . . . . . . . . . . . . . . . . . . . . . . .14
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ARTICLE TWO
Security Forms
SECTION 201. Forms Generally. . . . . . . . . . . . . . . . . . . . . . . . .14
SECTION 202. Form of Face of Security . . . . . . . . . . . . . . . . . . . .15
SECTION 203. Form of Reverse of Security. . . . . . . . . . . . . . . . . . .18
SECTION 204. Additional Provisions Required in Global Security. . . . . . . .20
SECTION 205. Form of Trustee's Certificate of Authentication. . . . . . . . .21
ARTICLE THREE
The Securities
SECTION 301. Title and Terms; Paying Agent. . . . . . . . . . . . . . . . . .21
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . . . . . . . . .24
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . .24
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; Interest Rights Preserved . . . . . . . . .28
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . . . . . . . . . . .29
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . .29
SECTION 310. Computation of Interest. . . . . . . . . . . . . . . . . . . . .29
SECTION 311. Right of Set-Off . . . . . . . . . . . . . . . . . . . . . . . .29
SECTION 312. Agreed Tax Treatment.. . . . . . . . . . . . . . . . . . . . . .30
SECTION 313. CUSIP Numbers. . . . . . . . . . . . . . . . . . . . . . . . . .30
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture. . . . . . . . . . . . .30
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . .31
SECTION 403. Satisfaction, Discharge and Defeasance of Securities . . . . . .32
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ARTICLE FIVE
Remedies
SECTION 501. Events of Default. . . . . . . . . . . . . . . . . . . . . . . .33
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . . .34
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . .36
SECTION 505. Trustee May Enforce Claims Without Possession of Securities. . .37
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . .37
SECTION 507. Limitation on Suits. . . . . . . . . . . . . . . . . . . . . . .38
SECTION 508. Unconditional Right of Holders to Receive Principal and
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . .39
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . .39
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . .39
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . .40
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . .40
SECTION 513. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . . .41
SECTION 514. Undertaking for Costs. . . . . . . . . . . . . . . . . . . . . .41
SECTION 515. Waiver of Usury, Stay or Extension Laws. . . . . . . . . . . . .42
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities. . . . . . . . . . . . . . .42
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . .43
SECTION 603. Certain Rights of Trustee. . . . . . . . . . . . . . . . . . . .44
SECTION 604. Not Responsible for Recitals or Issuance of Securities . . . . .45
SECTION 605. May Hold Securities. . . . . . . . . . . . . . . . . . . . . . .45
SECTION 606. Money Held in Trust. . . . . . . . . . . . . . . . . . . . . . .45
SECTION 607. Compensation; Reimbursement; and Indemnity . . . . . . . . . . .45
SECTION 608. Disqualification; Conflicting Interests. . . . . . . . . . . . .46
SECTION 609. Corporate Trustee Required; Eligibility. . . . . . . . . . . . .47
SECTION 610. Resignation and Removal; Appointment of Successor. . . . . . . .47
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . . .48
SECTION 612. Merger, Conversion, Consolidation or Succession to Business. . .49
SECTION 613. Preferential Collection of Claims Against Company. . . . . . . .49
SECTION 614. Appointment of Authenticating Agent. . . . . . . . . . . . . . .49
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ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders. . . .51
SECTION 702. Preservation of Information; Communications to Holders . . . . .51
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . .52
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . .52
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms . . . . . .52
SECTION 802. Successor Substituted. . . . . . . . . . . . . . . . . . . . . .53
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders . . . . . . .54
SECTION 902. Supplemental Indentures with Consent of Holders. . . . . . . . .55
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . .56
SECTION 904. Effect of Supplemental Indentures. . . . . . . . . . . . . . . .56
SECTION 905. Conformity with Trust Indenture Act. . . . . . . . . . . . . . .57
SECTION 906. Reference in Securities to Supplemental Indentures . . . . . . .57
ARTICLE TEN
Covenants; Representations and Warranties
SECTION 1001. Payment of Principal and Interest . . . . . . . . . . . . . . .57
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . .57
SECTION 1003. Money for Security Payments to Be Held in Trust . . . . . . . .58
SECTION 1004. Statement by Officers as to Compliance. . . . . . . . . . . . .59
SECTION 1005. Additional Sums . . . . . . . . . . . . . . . . . . . . . . . .59
SECTION 1006. Additional Covenants. . . . . . . . . . . . . . . . . . . . . .60
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SECTION 1007. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . .61
ARTICLE ELEVEN
Subordination of Securities
SECTION 1101. Securities Subordinate to Senior Debt . . . . . . . . . . . . .61
SECTION 1102. Payment Over of Proceeds Upon Dissolution, Etc. . . . . . . . .61
SECTION 1103. Prior Payment to Senior Debt Upon Acceleration of Securities. .62
SECTION 1104. No Payment When Senior Debt in Default. . . . . . . . . . . . .63
SECTION 1105. Payment Permitted If No Default.. . . . . . . . . . . . . . . .63
SECTION 1106. Subrogation to Rights of Holders of Senior Debt.. . . . . . . .64
SECTION 1107. Provisions Solely to Define Relative Rights.. . . . . . . . . .64
SECTION 1108. Trustee to Effectuate Subordination.. . . . . . . . . . . . . .65
SECTION 1109. No Waiver of Subordination Provisions . . . . . . . . . . . . .65
SECTION 1110. Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . .65
SECTION 1111. Reliance on Judicial Order or Certificate of Liquidating
Agent.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .65
SECTION 1112. Trustee Not Fiduciary for Holders of Senior Debt. . . . . . . .66
SECTION 1113. Rights of Trustee as Holder of Senior Debt; Preservation of
Trustee's Rights. . . . . . . . . . . . . . . . . . . . . . . .66
SECTION 1114. Article Applicable to Paying Agents.. . . . . . . . . . . . . .66
SECTION 1115. Certain Conversions or Exchanges Deemed Payment.. . . . . . . .66
ARTICLE TWELVE
Redemption of Securities
SECTION 1201. Applicability of this Article . . . . . . . . . . . . . . . . .67
SECTION 1202. Election to Redeem; Notice to Trustee . . . . . . . . . . . . .67
SECTION 1203. Selection by Trustee of Securities to Be Redeemed . . . . . . .67
SECTION 1204. Notice of Redemption. . . . . . . . . . . . . . . . . . . . . .68
SECTION 1205. Deposit of Redemption Price . . . . . . . . . . . . . . . . . .69
SECTION 1206. Securities Payable on Redemption Date . . . . . . . . . . . . .69
SECTION 1207. Optional Redemption; Conditions to Optional Redemption. . . . .70
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<PAGE>
ANNEX A: Form of Amended and Restated Trust Agreement between the Company, as
Depositor, and Wilmington Trust Company, Michael E. Sproule, Michael
G. Fraizer and James A. Smallenberger, as trustees, dated as of
______________, 1997.
EXHIBIT A: Agreement As To Expenses And Liabilities
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<PAGE>
INDENTURE, dated as of _____________, 1997, between AmerUs Life
Holdings, Inc., a corporation duly organized and existing under the laws of
the State of Iowa (herein called the "COMPANY"), having its principal office
at 418 Sixth Avenue, Des Moines, Iowa 50306-2499, and Wilmington Trust
Company, a banking corporation duly organized and existing under the laws of
Delaware, as Trustee (herein called the "TRUSTEE"). Unless otherwise defined
herein, all capitalized items used herein shall have the meanings ascribed to
them in the Amended and Restated Trust Agreement between the Company, as
Depositor and Wilmington Trust Company, Michael E. Sproule, Michael G.
Fraizer and James A. Smallenberger as trustees, and the holders, from time to
time, of undivided beneficial interests in the assets of the Trust, dated as
of _____________, 1997 (the "TRUST AGREEMENT"), as in effect on the date
hereof, the form of which is attached as Annex A hereto.
RECITALS OF THE COMPANY
WHEREAS, AmerUs Capital I (as defined herein) may, pursuant to
the Underwriting Agreement dated ________________, 1997 among the Company,
AmerUs Capital I, AmerUs Life Insurance Company and Goldman, Sachs & Co.,
issue up to $86,250,000 aggregate liquidation amount of its [____%]
Capital Securities, Series A (the "CAPITAL SECURITIES" and, together with the
Common Securities, the "TRUST SECURITIES") with a liquidation amount of
$1,000 per Capital Security;
WHEREAS, this Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions;
WHEREAS, the Company is guaranteeing the payment of
distributions on the Capital Securities of AmerUs Capital I and payment of
the Redemption Price and payments on liquidation with respect to the Capital
Securities, to the extent provided in the Guarantee Agreement dated
_______________, 1997, between the Company and Wilmington Trust Company, as
guarantee trustee (the "PARENT GUARANTEE") for the benefit of the holders of
the Capital Securities;
WHEREAS, the Company wishes to sell to AmerUs Capital I, and
AmerUs Capital I wishes to purchase from the Company, Securities (as defined
below) in an aggregate principal amount up to $86,250,000 and in satisfaction
of the purchase price for such Securities, the trustees of AmerUs Capital I,
on behalf of AmerUs Capital I, wish to (i) execute and deliver to the Company
Common Securities certificates evidencing an ownership interest in AmerUs
Capital I, registered in the name of the Company, in an aggregate amount of
up to 2,588 Common Securities having an aggregate liquidation amount of up to
$2,588,000, and (ii) deliver to the Company the sum of up to $86,250,000;
<PAGE>
WHEREAS, the Company has duly authorized the creation and issuance of
an issue of its unsecured [____%] junior subordinated debentures, series A (the
"SECURITIES"), of substantially the tenor and amount hereinafter set forth
issued to evidence loans made to the Company of the proceeds from the issuance
by AmerUs Capital I of the Capital Securities and Common Securities, to
provide the terms and conditions upon which the Securities are to be
authenticated, issued and delivered and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture; and
WHEREAS, all things necessary to make the Securities, when executed by
the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holder thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles which are generally
accepted at the date or time of such computation; provided, that when
two or more principles are so generally accepted, it shall mean that
set of principles consistent with those in use by the Company; and
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<PAGE>
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"ACT", when used with respect to any Holder, has the meaning specified
in Section 104.
"ADDITIONAL INTEREST" means interest, if any, that shall accrue on any
interest on the Securities the payment of which has not been made on the
applicable Interest Payment Date and which shall accrue at the rate of [____]%
per annum compounded quarterly (to the extent permitted by law).
"ADDITIONAL SUMS" has the meaning specified in Section 1005.
"ADDITIONAL TAXES" means the sum of any additional taxes, duties and
other governmental charges to which AmerUs Capital I has become subject from
time to time as a result of a Tax Event.
"ADMINISTRATIVE TRUSTEES" means each Person identified as an
"Administrative Trustee" in the Trust Agreement, solely in such Person's
capacity as Administrative Trustee of AmerUs Capital I under such Trust
Agreement and not in such Person's individual capacity, or any successor
administrative trustee appointed as therein provided.
"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.
"AMERUS CAPITAL I" means the business trust declared and established
pursuant to the Delaware Business Trust Act (12 Del. Code Section 3801 et. seq.)
by the Trust Agreement.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities.
"BOARD OF DIRECTORS" means either the board of directors of the
Company or any duly authorized committee of that board.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors or such committee of the Board of Directors or officers
of the Company to which authority to act on behalf of the Board of Directors has
been delegated, and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY" means any day other than a Saturday or Sunday or a day
on which banking institutions in The City of New York are authorized or required
by law or executive
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<PAGE>
order to remain closed or a day on which the Corporate Trust Office of the
Trustee, or the principal office of the Property Trustee under the Trust
Agreement, is closed for business.
"CAPITAL SECURITIES" has the meaning specified in the Recitals to
this Indenture.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"COMMON SECURITIES" means undivided beneficial interests in the
assets of AmerUs Capital I, having a Liquidation Amount of $1,000 per Common
Security and having the rights provided therefor in the Trust Agreement.
"COMMON STOCK" means the common stock, without par value, of the
Company.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Chief
Executive Officer, its Vice Chairman of the Board, its President or a Vice
President, and by its Treasurer, an Assistant Treasurer, the Controller, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the principal office of the Trustee in
the City of Wilmington, Delaware, at which at any particular time its corporate
trust business shall be administered and which at the date of this Indenture is
Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890.
"CORPORATION" includes a corporation, association, company, limited
liability company, joint-stock company or business trust.
"DEBT" means, with respect to any Person, whether recourse is to all
or a portion of the assets of such Person and whether or not contingent, (i)
every obligation of such Person for money borrowed; (ii) every obligation of
such Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (iv) every obligation of such Person 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); (v) every capital lease obligation of such Person; and (vi) every
obligation of the type referred to in clauses (i) through (v) of another Person
and all dividends of another Person the payment of which, in either case, such
Person has guaranteed or is responsible or liable for, directly or indirectly,
as obligor or otherwise.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
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<PAGE>
"DEPOSITARY" means, with respect to the Securities issuable or issued
in whole or in part in the form of one or more Global Securities, the Person
designated as Depositary by the Company pursuant to this Indenture or any
successor thereto.
"EVENT OF DEFAULT" has the meaning specified in Section 501.
"EXPENSE AGREEMENT" means the Expense Agreement contemplated by
Section 607.
"EXTENSION PERIOD" has the meaning specified in Section 301.
"GLOBAL SECURITY" means a Security in the form prescribed in Section
204 evidencing all or part of the Securities, issued to the Depository or its
nominee, and registered in the name of such Depository or its nominee.
"GOVERNMENT OBLIGATIONS" means, with respect to the Securities,
securities which are (i) direct obligations of the United States of America 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 by the United States of America and which, in either
case, are full faith and credit obligations of the United States of America and
are not callable or redeemable at the option of the issuer thereof and shall
also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to
any such Government Obligation or a specific payment of interest on or principal
of any such Government Obligation held by such custodian for the account of the
holder of such 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 the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"HOLDER" means a 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,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"INTEREST PAYMENT DATE", when used with respect to any installment of
interest on a Security, means the date specified in such Security as the fixed
date on which an installment of interest with respect to the Securities is due
and payable.
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<PAGE>
"INVESTMENT COMPANY EVENT" means the receipt by AmerUs Capital I of an
Opinion of Counsel experienced in such matters to the effect that, as a result
of the occurrence of a change in law or regulation or a change in interpretation
or application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"), AmerUs Capital I is
or will be considered an "investment company" that is required to be registered
under the Investment Company Act of 1940, as amended (the "Investment Company
Act"), which Change in 1940 Act Law becomes effective on or after the date of
original issuance of the Securities.
"JUNIOR SUBORDINATED PAYMENT" has the meaning specified in Section
1102.
"MATURITY", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman of
the Board, the Chief Executive Officer, a Vice Chairman of the Board, the
President or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Controller, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee. One of the officers signing an Officers' Certificate
given pursuant to Section 1004 shall be the principal executive, financial or
accounting officer of the Company.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel for the Company (and who may be an employee of the Company), and who
shall be acceptable to the Trustee.
"OUTSTANDING," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, EXCEPT: (i) Securities theretofore canceled by the
Trustee or delivered to the Trustee for cancellation; (ii) Securities for whose
payment or redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the 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 (iii) Securities which have been paid pursuant to Section 306, or
in exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by Holders in whose hands such Securities are
valid, binding and legal obligations of the Company; PROVIDED, HOWEVER, that in
determining whether the Holders of the requisite principal amount of Outstanding
Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or such other
obligor shall be disregarded and deemed not to be
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Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned 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. Upon the written request of
the Trustee, the Company shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Securities, if any, known by the Company
to be owned or held by or for the account of the Company, or any other obligor
on the Securities or any Affiliate of the Company or such obligor, and, subject
to the provisions of Section 601, the Trustee shall be entitled to accept such
Officers' Certificate as conclusive evidence of the facts therein set forth and
of the fact that all Securities not listed therein are Outstanding for the
purpose of any such determination.
"PARENT GUARANTEE" has the meaning specified in the Recitals to this
Indenture.
"PAYING AGENT" means any Person authorized by the Company to pay the
principal (or premium, if any) of or interest on, or other amounts in respect
of, any Securities on behalf of the Company.
"PERSON" means any individual, corporation, partnership, joint
venture, association, limited liability company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"PROCEEDING" has the meaning specified in Section 1102.
"PROPERTY TRUSTEE" means the commercial bank or trust company
identified as the "Property Trustee" in the Trust Agreement, solely in its
capacity as Property Trustee under such Trust Agreement and not in its
individual capacity, or its successor in interest in such capacity, or any
successor property trustee appointed as therein provided.
"REDEMPTION DATE", when used with respect to any Security 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 to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
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"REGULAR RECORD DATE" for the interest payable on any Interest Payment
Date means the Business Day next preceding such Interest Payment Date.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means
any officer of the Trustee assigned by the Trustee from time to time to
administer its corporate trust matters.
"SECURITIES" has the meaning specified in the Recitals to this
Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 305.
"SENIOR DEBT" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether or
not such claim for post-petition interest is allowed in such proceeding), on
Debt, whether incurred on or prior to the date of this Indenture or thereafter
incurred, unless, in the instrument creating or evidencing the same or pursuant
to which the same is outstanding, it is provided that such obligations are not
superior in right of payment to the Securities or to other Debt which is PARI
PASSU with, or subordinated to, the Securities; PROVIDED, HOWEVER, that Senior
Debt shall not be deemed to include (a) any Debt of the Company which, when
incurred and without respect to any election under Section 1111(b) of the
Bankruptcy Reform Act of 1978, was without recourse to the Company, (b) any Debt
of the Company to any of its Subsidiaries, (c) Debt to any employee of the
Company, (d) trade accounts payable of the Company, (e) accrued liabilities
arising in the ordinary course of business of the Company, (f) the
Securities, and (g) the Parent Guarantee.
"SPECIAL EVENT" means either an Investment Company Event or a Tax
Event.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"STATED MATURITY", when used with respect to any Security or any
installment of principal thereof (or premium, if any) or interest (including
any Additional Interest) thereon, means ___________, 2027, the date on which
the principal, together with any accrued and unpaid interest (including any
Additional Interest), of such Security or such installment of interest is due
and payable.
"SUBSIDIARY" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
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times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"TAX EVENT" means the receipt by AmerUs Capital I of an Opinion of
Counsel experienced in such matters to the effect that, as a result of (a)
any amendment to, or change (including any announced prospective change) in,
the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein or any official
administrative pronouncement or judicial decision interpreting or applying
such laws or regulations, which amendment or change is effective or which
pronouncement or decision is announced on or after the date of issuance of the
Securities, there is more than an insubstantial risk that (i) AmerUs
Capital I is, or will be within 90 days of the date of such Opinion of
Counsel, subject to United States Federal income tax with respect to interest
income received or accrued on the Securities, (ii) interest payable by the
Company on the Securities is not, or within 90 days of the date of such
Opinion of Counsel will not be, deductible by the Company, in whole or in
part, for United States Federal income tax purposes, or (iii) AmerUs Capital
I is, or will be within 90 days of the date of such Opinion of Counsel,
subject to more than a DE MINIMIS amount of other taxes, duties or other
governmental charges.
"TRUST AGREEMENT" has the meaning specified in the first paragraph of
this Indenture.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as amended
and as in force at the date as of which this instrument was executed; PROVIDED,
HOWEVER, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"TRUST SECURITIES" has the meaning specified in the Recitals to this
Indenture.
"VICE PRESIDENT", when used with respect to the Company or the
Trustee, means any duly appointed vice president, whether or not designated by a
number or a word or words added before or after the title "vice president".
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent
(including covenants, compliance with which
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constitutes a condition 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 conditions precedent
(including covenants compliance with which constitute a condition precedent), if
any, have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required by
any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished. Every
certificate or opinion delivered with respect to compliance with a condition or
covenant provided for in this Indenture (other than the certificate provided
pursuant to Section 1004) shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions herein relating
thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
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 or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given to or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee at the address specified in Section 105 and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "ACT" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, but shall not be obligated, to fix any day as the record date for
the purpose of determining the Holders entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or to
vote on any action, authorized or permitted to be given or taken by Holders.
Except as otherwise provided herein, if not set by the Company prior to the
first solicitation of a Holder made by any Person in respect of any such action,
or, in the case of any such vote, prior to such vote, the record date for any
such action or vote shall be the 30th day (or, if later, the date of the most
recent list of Holders required to be provided pursuant to Section 701) prior to
such first solicitation or vote, as the case may be. With regard to any record
date, only the Holders on such date (or their duly designated proxies) shall be
entitled to give or take, or vote on, the relevant action, whether or not such
Persons continue to be Holders after such record date, PROVIDED, HOWEVER, that
unless such vote or consent is obtained from the Holders (or their duly
designated proxies) of the requisite principal amount of Outstanding Securities
prior to the Expiration Date (as defined below), any such vote
or
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consent previously given shall automatically and without further action by any
Holder be canceled and of no further effect and nothing in this paragraph shall
be construed to render ineffective any action taken by Holders of the requisite
principal amount of Outstanding Securities on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Company,
at its own expense, shall cause notice of such record date, the proposed action
by Holders and the applicable Expiration Date to be given to the Trustee in
writing and to each Holder of Securities in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2), or (iv) any direction referred to
in Section 512. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Securities on such record date, and no other Holders,
shall be entitled to join in such notice, declaration, request or direction,
whether or not such Holders remain Holders after such record date, PROVIDED
that no such action shall be effective hereunder unless taken on or prior to
the applicable Expiration Date by Holders of the requisite principal amount
of Outstanding Securities on such record date. Nothing in this paragraph
shall be construed to prevent the Trustee from setting a new record date for
any action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and nothing in
this paragraph shall be construed to render ineffective any action taken by
Holders of the requisite principal amount of Outstanding Securities on the
date such action is taken. Promptly after any record date is set pursuant to
this paragraph, the Trustee, at the Company's expense, shall cause notice of
such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Securities in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto that sets such record date may designate any date as the "EXPIRATION
DATE" and from time to time may change the Expiration Date to any earlier or
later date, PROVIDED that no such change shall be effective unless notice of
the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities of the relevant series in the
manner set forth in Section 106, on or prior to the existing Expiration Date.
If an Expiration Date is not designated with respect to any record date set
pursuant to this Section, the party hereto that set such record date shall be
deemed to have initially designated the 180th day after such record date as
the Expiration Date with respect thereto, subject to its right to change the
Expiration Date as provided in this paragraph. Notwithstanding the foregoing,
no Expiration Date shall be later than the 180th day after the applicable
record date.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(f) Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Security may do so
with regard to all or any part of the principal amount of such Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND THE COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Administration or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
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In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
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.
The Company will 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 will remain liable for all such obligations. AmerUs Capital I may
not assign any of its rights under this Indenture without the prior written
consent of the Company. This Indenture is not otherwise assignable by the
parties hereto. Subject to the foregoing, this Indenture shall bind and inure
to the benefit of the parties hereto and their respective successors and
assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto, any Paying Agent and
their successors and assigns
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hereunder, the holders of Senior Debt, the holders of Capital Securities (to
the extent provided herein) and the Holders of Securities, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ITS CONFLICTS OF LAWS PROVISIONS. THIS INDENTURE IS SUBJECT TO
THE PROVISIONS OF THE TRUST INDENTURE ACT OF 1939, AS AMENDED, THAT ARE
REQUIRED TO BE PART OF THIS INDENTURE AND SHALL, TO THE EXTENT APPLICABLE, BE
GOVERNED BY SUCH PROVISIONS.
SECTION 113. NON-BUSINESS DAYS.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal (and premium, if any) or other amounts in
respect of the Securities need not be made on such date, but may be made on
the next succeeding Business Day in each case (except that, if such Business
Day is in the next succeeding calendar year, payment shall 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 or Redemption Date, or at the
Stated Maturity, PROVIDED that no interest shall accrue in respect of the
amounts whose payment is so delayed for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
ARTICLE TWO
Security Forms
SECTION 201. FORMS GENERALLY.
The Securities and the Trustee's certificates of authentication shall
be in substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with applicable tax laws or the rules of any securities
exchange, the Nasdaq National Market or any other applicable self-regulatory
organization as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the Securities.
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The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these or other methods, if required by any
securities exchange on which the Securities may be listed, on a steel engraved
border or steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities may be
listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
SECTION 202. FORM OF FACE OF SECURITY.
[If the Security is a Global Security, insert--This Security is a
Global Security within the meaning of the Indenture hereinafter referred
to and is registered in the name of The Depository Trust Company, a New
York Corporaiton ("DTC") or a nominee of DTC. This Security is exchangeable
for Securities registered in the name of a person other than DTC or its
nominee only in the limited circumstances described in the Indenture and
no transfer of this Security (other than a transfer of this Security as a
whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another
nominee of DTC) may be registered except in limited circumstances.
Unless this Security is presented by an authorized representative
of DTC to AmerUs Life Holdings, Inc. or its agent for registration of
transfer, exchange or payment, and any Security issued is registered in the
name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment hereon is made to Cede & Co. or to such
other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co. has an
interest herein.]
AMERUS LIFE HOLDINGS
[____%] Junior Subordinated Debenture, Series A
No._________ $_________
[CUSIP No. _______________]
AMERUS LIFE HOLDINGS, INC., a corporation duly organized and existing
under the laws of the State of Iowa (herein called "ALH", which term includes
any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _____________________________, or
registered assigns, the principal sum of _________ DOLLARS ($__________) on
______________, 2027.
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The Company further promises to pay interest on said principal sum from
______________, 1997 or from the most recent interest payment date (each such
date, an "Interest Payment Date") to which interest has been paid or duly
provided for, semi-annually (subject to deferral as set forth herein) in
arrears on January 31 and July 31 of each year, commencing July 31, 1997, at
the rate of [____%] per annum together with Additional Sums, if any, until
the principal hereof is paid or duly provided for or made available for
payment; PROVIDED that any overdue principal, premium or Additional Sums and
any overdue installment of interest shall bear Additional Interest at the
rate of __% per annum (to the extent that the payment of such interest shall
be legally enforceable), compounded semi-annually, from the dates such
amounts are due until they are paid or made available for payment. The amount
of interest payable for any period less than a full interest period will be
computed on the basis of twelve 30-day months and a 360-day year and the
actual days elapsed in a partial month in such period. In the event that any
date on which interest is payable on this Security is not a Business Day,
then a payment of the interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on the date the payment was originally payable. A
"BUSINESS DAY" shall mean any day other than a day on which banking
institutions in the City of New York are authorized or required by law or
executive order to remain closed or a day on which the Corporate Trust Office
of the Trustee, or the principal office of the Property Trustee under the
Trust Agreement, is closed for business. The interest installment so
payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Indenture, be paid to the Person in whose name
this Security (or one or more Predecessor Securities, as defined in the
Indenture) is registered at the close of business on the Regular Record Date
for such interest installment, which shall be the close of business on the
Business Day next preceding such Interest Payment Date. Any such interest
installment not so punctually paid or duly provided for shall forthwith cease
to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities not less than 10 days prior
to such Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Securities may be listed or the Nasdaq National Market if the
Securities are quoted thereon, or of any other applicable self-regulatory
organization, and upon such notice as may be required by such exchange, the
Nasdaq National Market or such other organization all as more fully provided
in said Indenture.
ALH shall have the right at any time during the term of this
Security, from time to time, to extend the interest payment period of such
Security for up to ten consecutive semi-annual periods with respect to each
deferral period (each an "EXTENSION PERIOD"), during which period interest
will compound semi-annually and ALH shall have the right to make partial
payments of interest on any Interest Payment Date, and at the end of which
Extension Period ALH shall pay all interest then accrued and unpaid including
any Additional Interest; PROVIDED, HOWEVER, that no Extension Period shall
extend beyond the Stated Maturity of the principal of this Security as then
in effect, and no such Extension Period may end on a date other than an
Interest Payment Date;
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PROVIDED FURTHER that during any such Extension Period, ALH shall not, and
shall cause any Subsidiary of ALH not to, (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of ALH's outstanding capital stock or (ii) make any
payment of principal, interest or premium, if any, on or repay, repurchase or
redeem any debt security of ALH ranking PARI PASSU with or junior in interest
to this Security or make any guarantee payments with respect to any guarantee
by the Company of the debt securities of any Subsidiary of the Company that
by their terms rank PARI PASSU or junior in interest to the Securities (other
than (a) dividends or distributions in Common Stock of the Company, (b)
payments under any Parent Guarantee, and (c) purchases of Common Stock
related to the issuance of Common Stock under any of the Company's benefit
plans for its directors, officers or employees). Prior to the termination of
any such Extension Period, ALH may further defer the interest payments,
PROVIDED that no Extension Period shall exceed ten consecutive semi-annual
periods or extend beyond the Stated Maturity of this Security or end on a
date other than an Interest Payment Date. Upon the termination of any such
Extension Period and upon the payment of all accrued and unpaid interest and
any Additional Interest then due, ALH may elect to begin a new Extension
Period, subject to the above requirements. No interest shall be due and
payable during an Extension Period, except at the end thereof but each
installment of interest that would otherwise have been due and payable during
such Extension Period shall bear Additional Interest (to the extent that the
payment of such interest shall be legally enforceable) at the rate of __% per
annum, compounded semi-annually and calculated as set forth in the first
paragraph of this Security, from the dates on which amounts would otherwise
have been due and payable until paid or made available for payment. ALH
shall give the Trustee and the Administrative Trustees notice of its election
to begin an Extension Period at least one Business Day prior to the earliest
of (i) the date interest on this Security would have been payable except for
the election to begin such Extension Period or (ii) the date AmerUs Capital I
is required to give notice to any securities exchange or the Nasdaq National
Market or other applicable self-regulatory organization or to holders of the
Capital Securities of the record date or (iii) the date such distributions on
the Trust Securities are payable, but in any event not less than one Business
Day prior to such record date.
Payment of the principal of and premium, if any, and interest
(including any Additional Interest) on this Security will be made at the
office or agency of ALH maintained for that purpose in the United States, in
such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; PROVIDED,
HOWEVER, that at the option of ALH payment of interest may be made (i) by
check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register or (ii) by wire transfer in immediately
available funds at such place and to such account as may be designated by the
Person entitled thereto as specified in the Security Register.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full of all Senior Debt, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions,
(b) authorizes and directs the Trustee on his behalf to take such action as may
be necessary or appropriate to effectuate the subordination so provided and
(c) appoints the Trustee his attorney-in-fact for any and all such purposes.
Each Holder hereof, by his acceptance hereof, waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Debt, whether now outstanding or hereafter incurred,
and waives reliance by each such holder upon said provisions.
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Reference is hereby made to the further provisions of the Indenture
summarized on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, AmerUs Life Holdings, Inc. has caused this
instrument to be duly executed under its corporate seal.
Dated:
AMERUS LIFE HOLDINGS, INC.
By:___________________________
Name:
Title:
Attest:
_______________________
SECTION 203. FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of Securities of ALH,
designated as its [____%] Junior Subordinated Debentures, Series A (herein
called the "SECURITIES"), limited in aggregate principal amount to [$86,250,000]
issued under an Indenture, dated as of _________, 1997 (herein called the
"INDENTURE"), between ALH and Wilmington Trust Company, as Trustee (herein
called the "TRUSTEE", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Trustee, ALH and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
All terms used in this Security which are defined in the Indenture or
in the Trust Agreement attached as Annex A thereto shall have the meanings
assigned to them in the Indenture or the Trust Agreement, as the case may be.
At any time on or after ____________________, 2007, ALH shall have the
right, subject to the terms and conditions of Article Twelve of the Indenture,
to redeem this Security at the option of ALH, without premium or penalty, in
whole at any time or in part from time to time, at a Redemption Price equal to
the following prices expressed in percentages of the principal amount to be
redeemed, plus accrued but unpaid interest, including any Additional Interest,
if any, to the Redemption Date; if redeemed during the 12-month period
beginning ___________:
Year Redemption Price
---- ----------------
2007 %
2008
2009
2010
2011
2012
2013
2014
2015
2016
and at 100% on or after _________, 2017.
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If a Special Event as defined in Article Twelve of the Indenture
shall occur and be continuing prior to ______, 2007, ALH shall have the
right, subject to the terms and conditions of Article Twelve of the
Indenture, to redeem this Security at the option of ALH, without premium or
penalty, in whole but not in part, within 90 days following the occurrence of
such Special Event, subject to the provisions of Section 1207 and other
provisions of Article Twelve of the Indenture, at a Redemption Price equal to
the Make-Whole Amount, plus accrued but unpaid interest, including any
Additional Interest, if any, to the Redemption Date. The "Make-Whole Amount"
shall be equal to the greater of (i) 100% of the principal amount hereof or
(ii) as determined by a Quotation Agent (as defined below), the sum of the
present values of the principal amount and premium payable as part of the
Redemption Price with respect to an optional redemption hereof on _____, 2007,
together with scheduled payments of interest from the Redemption Date to
_______, 2007 (the "Remaining Life"), in each case discounted to the
Redemption Date on a semi-annual basis (assuming a 360-day year consisting of
30-day months) at the Adjusted Treasury Rate (as defined below). Any
redemption pursuant to this paragraph will be made upon not less than 30 nor
more than 60 days' notice, at the Redemption Price. If the Securities are
only partially redeemed by ALH, the Securities will be redeemed PRO RATA.
"Adjusted Treasury Rate" means, with respect to any Redemption Date,
the Treasury Rate (as defined below) plus (i) ___% if such Redemption Date
occurs on or before ________, 1998 or (ii) ___% if such Redemption Date occurs
after ________, 1998.
"Treasury Rate" means (i) the yield, under the heading which
represents the average for the immediately prior week, appearing in the most
recently published statistical release designated "H.15(519)" or any successor
publication which is published weekly by the Federal Reserve and which
establishes yields on actively traded United States Treasury securities adjusted
to constant maturity under the caption "Treasury Constant Maturities," for the
maturity corresponding to the Remaining Life (if no maturity is within three
months before or after the Remaining Life, yields for the two published
maturities most closely corresponding to the Remaining Life shall be determined
and the Treasury Rate shall be interpolated or extrapolated from such yields on
a straight-line basis, rounding to the nearest month) or (ii) if such release
(or any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the semi-annual equivalent yield to maturity of the Comparable Treasury Issue
(as defined below), calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date. The Treasury Rate shall be calculated
on the third Business Day preceding the Redemption Date.
"Comparable Treasury Issue" means, with respect to any Redemption
Date, the United States Treasury security selected by the Quotation Agent as
having a maturity comparable to the Remaining Life that would be utilized, at
the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
Remaining Life. If no United States Treasury security has a maturity which is
within a period from three months before to three months after _______, 2007,
the two most closely corresponding United States Treasury securities shall be
used as the Comparable Treasury Issue, and the Treasury Rate shall be
interpolated or extrapolated on a straight-line basis, rounding to the nearest
month using such securities.
"Quotation Agent" means Goldman, Sachs & Co. and their successors;
providing, however, that if the foregoing shall cease to be a primary U.S.
Government securities dealer in New York City (a "Primary Treasury Dealer"), the
Company shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer" means (i) the Quotation Agent and (ii) any
other Primary Treasury Dealer selected by the Trustee after consultation with
the Company.
"Comparable Treasury Price" means (i) the average of five Reference
Treasury Dealer Quotations (as defined below) for such Redemption Date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations, or
(ii) if the Trustee obtains fewer than three such Reference Treasury Dealer
Quotations, the average of all such Quotations.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such Redemption Date.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
If an Event of Default with respect to the Securities shall occur and
be continuing, the principal of the Securities may be declared due and payable
in the manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions for satisfaction and discharge and
defeasance at any time of the entire indebtedness of this Security upon
compliance by ALH with certain conditions set forth in the Indenture.
The Indenture contains provisions permitting ALH and the
Trustee, with the consent of Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities, to modify the Indenture in a
manner affecting the rights of the Holders of the Securities; PROVIDED that
no such modification may, without the consent of the Holder of each
Outstanding Security affected thereby, (i) change the fixed maturity of the
Securities or reduce the principal amount thereof, or reduce the rate or
extend the time of payment of interest thereon, or (ii) reduce the percentage
of principal amount of the Securities, the Holders of which are required to
consent to any such modification of the Indenture; PROVIDED, that, so long as
any of the Capital Securities remains Outstanding, no such modification may
be made that adversely affects the Holders of the Capital Securities, and no
termination of the Indenture may occur, and no waiver of any Event of Default
or compliance with any covenant under the Indenture may be effective, without
the prior consent of the Holders of at least a majority of the aggregate
Liquidation Amount (as defined in the Trust Agreement) of the Outstanding
Capital Securities unless and until the principal of the Securities and all
accrued and unpaid interest (including any Additional Interest) thereon have
been paid in full. The Indenture also contains provisions permitting Holders
of specified percentages in principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all Securities, to waive compliance
by ALH with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of
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transfer hereof or in exchange therefore or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, if an Event of
Default with respect to the Securities at the time Outstanding occurs and is
continuing, then and in every such case the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities may declare
the principal amount of all the Securities to be due and payable immediately,
by a notice in writing to ALH (and to the Trustee if given by Holders), PROVIDED
that, if upon an Event of Default the Trustee or such Holders fail to declare
the principal of all the Outstanding Securities to be immediately due and
payable, the holders of at least 25% in aggregate Liquidation Amount of the
Capital Securities then Outstanding shall have the right to make such
declaration by a notice in writing to ALH and the Trustee; and upon any such
declaration the principal amount of and the accrued interest (including any
Additional Interest) on all the Securities shall become immediately due and
payable, PROVIDED that the payment of principal and interest (including any
Additional Interest) on such Securities shall remain subordinated to the extent
provided in Article Eleven of the Indenture.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of ALH, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of
transfer at the office or agency of Wilmington Trust Company in Wilmington,
Delaware, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to Wilmington Trust Company, as the Security
Registrar, duly executed by the Holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Securities of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees. No service charge shall
be made for any such registration of transfer or exchange, but ALH or
Wilmington Trust Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, ALH, the Trustee and any agent of ALH or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither ALH, the Trustee
nor any such agent shall be affected by notice to the contrary.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of a different
authorized denomination, as requested by the Holder surrendering the same.
The Company and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security agree that for United States Federal, state and local
tax purposes it is intended that this Security constitute indebtedness.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES THEREOF.
SECTION 204. ADDITIONAL PROVISIONS REQUIRED IN GLOBAL SECURITY.
Any Global Security issued hereunder shall, in addition to the
provisions contained in Sections 202 and 203, bear a legend in substantially the
following form:
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"If the Security is a Global Security, insert--This Security is a
Global Security within the meaning of the Indenture hereinafter referred
to and is registered in the name of The Depository Trust Company, a New
York Corporaiton ("DTC") or a nominee of DTC. This Security is exchangeable
for Securities registered in the name of a person other than DTC or its
nominee only in the limited circumstances described in the Indenture and
no transfer of this Security (other than a transfer of this Security as a
whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another
nominee of DTC) may be registered except in limited circumstances.
Unless this Security is presented by an authorized representative
of DTC to AmerUs Life Holdings, Inc. or its agent for registration of
transfer, exchange or payment, and any Security issued is registered in the
name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment hereon is made to Cede & Co. or to such
other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co. has an
interest herein."
SECTION 205. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the within-mentioned
Indenture.
Wilmington Trust Company,
AS TRUSTEE
By: _______________________
AUTHORIZED OFFICER
ARTICLE THREE
The Securities
SECTION 301. TITLE AND TERMS; PAYING AGENT.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $86,250,000
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section 304,
305, 306, 906 or 1208.
The Securities shall be known and designated as the "[____%] Junior
Subordinated Debentures, Series A" of the Company. Their Stated
Maturity shall be ____________, 2027.
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The Securities shall bear interest at the rate of [_____%] per
annum, from _________________, 1997 or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, as the case may
be, payable semi-annually (subject to deferral as set forth herein), in
arrears, on January 31 and July 31 of each year, commencing July 31, 1997
until the principal thereof is paid or made available for payment. Accrued
interest that is not paid on the applicable Interest Payment Date (even if
unpaid due to an extension of an interest payment period as set forth below
in this Section 301) will bear Additional Interest on the amount thereof. In
the event that any date on which interest is payable on the Securities is not
a Business Day, then a payment of the interest payable on such date will be
made on the next succeeding day which is a Business Day (except that, if such
Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day) (and without any interest or
other payment in respect of any such delay), in each case with the same force
and effect as if made on the date the payment was originally payable.
So long as no Event of Default hereunder has occurred and is
continuing, the Company shall have the right, at any time during the term of
the Securities, to defer the payment of interest on such Securities from time
to time, for up to ten consecutive semi-annual periods (each, an "EXTENSION
PERIOD") during which Extension Periods interest will compound semi-annually
and the Company shall have the right to make partial payments of interest on
any Interest Payment Date. No Extension Period shall end on a date other
than an Interest Payment Date. At the end of any such Extension Period the
Company shall pay all interest then accrued and unpaid on the Securities
(together with Additional Interest thereon, if any, at the rate specified for
the Securities to the extent permitted by applicable law), PROVIDED, HOWEVER,
that during any such Extension Period, the Company shall not, and shall cause
any Subsidiary not to, (i) declare or pay any dividends or distributions on,
or redeem, purchase, acquire or make a liquidation payment with respect to,
any of the Company's capital stock, or (ii) make any payment of principal,
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company ranking PARI PASSU with or junior in interest to
the Securities or make any guarantee payments with respect to any guarantee
by the Company of the debt securities of any Subsidiary of the Company that
by their terms rank PARI PASSU or junior in interest to the Securities (other
than (a) dividends or
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distributions in Common Stock of the Company (b) payments under the Parent
Guarantee, and (c) purchases of Common Stock related to the issuance of
Common Stock under any of the Company's benefit plans for its directors,
officers or employees). Prior to the termination of any such Extension
Period, the Company may further extend the interest payment period, PROVIDED
that no Extension Period shall exceed ten consecutive semi-annual periods or
extend beyond the Stated Maturity of the Securities. Upon the termination of
any Extension Period and upon the payment of all accrued and unpaid interest
and any Additional Interest then due, the Company may elect to begin a new
Extension Period, subject to the above requirements. No interest shall be
due and payable during an Extension Period, except at the end thereof. The
Company shall give the Trustee and the Administrative Trustees notice of its
election to begin any such Extension Period at least one Business Day prior
to the earliest of (i) the date interest on the Securities would have been
payable except for the election to begin such Extension Period or (ii) the
date such distributions on the Trust Securities are payable or (iii) the date
AmerUs Capital I is required to give notice to any securities exchange or the
Nasdaq National Market or other applicable self-regulatory organization or to
holders of the Capital Securities of the record date or the date such
distributions are payable, but in any event not less than one Business Day
prior to such record date.
The Trustee shall promptly give notice of the Company's election to
begin any such Extension Period to the Holders of the Outstanding Securities.
The principal of and interest on the Securities shall be payable at
the office of such Paying Agent or Paying Agents as the Company may designate
for such purpose from time to time, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; PROVIDED, HOWEVER, that at the option of the Company
payment of interest may be made (i) by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register or
(ii) by wire transfer in immediately available funds at such place and to such
account as may be designated by the Person entitled thereto as specified in the
Security Register.
The Company designates Wilmington Trust Company as the initial Paying
Agent with respect to the Securities. The Company may at any time designate
additional Paying Agents or rescind the designation of any Paying Agent or
approve a change in the office through which any Paying Agent acts pursuant to
Section 1002.
The Securities shall be subordinated in right of payment to Senior
Debt as provided in Article Eleven.
The Securities shall be redeemable as provided in Article Twelve.
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SECTION 302. DENOMINATIONS.
The Securities shall be issuable only in registered form, without
coupons, and only in denominations of $1,000 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 of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication. Securities may be authenticated on original
issuance from time to time and delivered pursuant to such procedures acceptable
to the Trustee ("Procedures") as may be specified from time to time by Company
Order. Procedures may authorize authentication and delivery pursuant to oral
instructions of the Company or a duly authorized agent, which instructions shall
be promptly confirmed in writing.
Prior to the delivery of a Security in any such form to the Trustee
for authentication, the Company shall deliver to the Trustee a Company Order
requesting the Trustee's authentication and delivery of all or a portion of the
Securities, and if less than all, setting forth procedures for such
authentication. The Trustee in accordance with such Company Order shall
authenticate and deliver such Securities as in this Indenture provided and not
otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
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SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities
having the same date of issuance and Stated Maturity and having the same terms
as such temporary Securities. Until so exchanged the temporary Securities shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
collectively referred to as the "SECURITY REGISTER") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "SECURITY REGISTRAR" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security (duly
endorsed or with the form of transfer endorsed thereon duly executed) at the
office of the Security Registrar or at an office or agency of the Company
designated pursuant to Section 1002 for such purpose, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of any
authorized denominations, of a like tenor and aggregate principal amount,
having the same date of issuance, Stated Maturity and terms.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations, of a like tenor and aggregate
principal amount having the same date of issuance, Stated Maturity and
terms, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the
Company shall
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execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by the
Holder thereof or his attorney duly authorized in writing. Such transfer or
exchange will be effected upon the Security Registrar or the Company, as the
case may be, being satisfied with the documents of title and identity of the
Person making the request.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Securities, but the Company or the Securities Registrar
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, 906 or
1208 not involving any transfer.
Notwithstanding any of the foregoing, any Global Security shall be
exchangeable pursuant to this Section for Securities registered in the name of
Persons other than the Depositary for such Security or its nominee only if (i)
such Depositary notifies the Company that it is unwilling or unable to continue
as Depositary for such Global Security or if at any time such Depositary ceases
to be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, (ii) the Company executes and delivers to the Trustee a Company Order
that such Global Security shall be so exchangeable or (iii) there shall have
occurred and be continuing an Event of Default with respect to the Securities.
Any Global Security that is exchangeable pursuant to the preceding sentence
shall be exchangeable for Securities registered in such names as such Depositary
shall direct.
Notwithstanding any other provision in this Indenture, a Global
Security may not be transferred except as a whole by the Depositary with respect
to such Global Security to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary.
Neither the Company nor the Security Registrar shall be required,
pursuant to the provisions of this Section, (a) to issue, register the
transfer of or exchange any Security during a period beginning at the opening
of business 15 days before the day of selection for redemption of Securities
pursuant to Article Twelve and ending at the close of business on the day of
mailing of notice of redemption or (b) to register the transfer of or exchange
any Security so selected for redemption in
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whole or in part, except, in the case of any Security to be redeemed in part,
any portion thereof not to be redeemed.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee together with
such security or indemnity as may be required by the Company or the Trustee to
save each of them harmless, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of like tenor and
aggregate principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
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SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest and 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 that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest payment except that, unless otherwise provided
in the Securities, interest and any Additional Interest payable on the Stated
Maturity of the principal of a Security shall be paid to the Person to whom
principal is paid.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"DEFAULTED INTEREST") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder at his address as it appears in
the Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and, if so
listed, upon such notice as may be required by such exchange, (or by the
Trustee if the Securities are not listed) if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
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Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue (including in each such case Additional Interest),
which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of and (subject
to Section 307) interest (including Additional Interest) on such Security and
for all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on its
behalf by a Depositary shall have any rights under this Indenture with respect
to such Global Security, and such Depositary may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the owner of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by a Depositary or impair, as between a Depositary and
such holders of beneficial interests, the operation of customary practices
governing the exercise of the rights of the Depositary (or its nominee) as
Holder of any Security.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and any such Securities and Securities surrendered
directly to the Trustee for any such purpose shall be promptly canceled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly 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 this Indenture. All canceled
Securities held by the Trustee shall be disposed of as directed by a Company
Order.
SECTION 310. COMPUTATION OF INTEREST.
Interest on the Securities payable for any full semi-annual period
shall be computed on the basis of a 360-day year of twelve 30-day months and,
for any period shorter than a full monthly period, shall be computed on the
basis of the actual number of days elapsed in such period.
SECTION 311. RIGHT OF SET-OFF.
Notwithstanding anything to the contrary in the Indenture, the Company
shall have the right to set-off any payment it is otherwise required to make
hereunder with respect to any Security and to the extent the Company has
theretofore made, or is concurrently on the date of such payment making, a
payment under the Parent Guarantee or under Section 508 hereof.
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SECTION 312. AGREED TAX TREATMENT.
Each Security issued hereunder shall provide that the Company and, by
its acceptance of a Security or a beneficial interest therein, the Holder of,
and any Person that acquires a beneficial interest in, such Security agree that
for United States Federal, state and local tax purposes it is intended that such
Security constitute indebtedness.
SECTION 313. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; PROVIDED that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall, upon Company Request, cease to be of
further effect and the Company will be deemed to have satisfied and
discharged this Indenture (except as to any surviving rights of registration
of transfer or exchange of Securities herein expressly provided for and as
otherwise provided in this Section 401) and the Trustee, on written demand of
and at the expense of the Company, shall execute instruments supplied by the
Company acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306 and (ii) Securities
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
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(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year of the date of deposit,
and the Company, in the case of (i) or (ii) above, has deposited or
caused to be deposited with the Trustee cash or cash equivalents, as trust
funds in trust for the purpose, an amount sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal, premium, if any, and interest
(including Additional Interest) to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations
of the Trustee to any Authentication Agent under Section 614 and, if money
shall have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under Section 402
and the last paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 or money or Government
Obligations deposited with the Trustee pursuant to Section 403, or received by
the Trustee in respect of Government Obligations deposited with the Trustee,
pursuant to Section 403, shall be held in trust and applied by the Trustee, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest
(including any Additional Interest) for the payment of which such money or
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obligations have been deposited with or received by the Trustee.
SECTION 403. SATISFACTION, DISCHARGE AND DEFEASANCE OF SECURITIES.
The Company shall be deemed to have paid and discharged the entire
indebtedness on all the Outstanding Securities and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of such indebtedness, when
(1) with respect to all Outstanding Securities,
(A) the Company has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds in
trust for such purpose an amount sufficient to pay and
discharge the entire indebtedness on all Outstanding
Securities for principal (and premium, if any) and interest
(including any Additional Interest) to the Stated Maturity
or any Redemption Date as contemplated by the penultimate
paragraph of this Section, as the case may be; or
(B) the Company has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as obligations in
trust for such purpose an amount of Government Obligations
as will, in the written opinion of independent public
accountants delivered to the Trustee, together with
predetermined and certain income to accrue thereon, without
consideration of any reinvestment thereof, be sufficient to
pay and discharge when due the entire indebtedness on all
Outstanding Securities for principal (and premium, if any)
and interest (including any Additional Interest) to the
Stated Maturity or any Redemption Date as contemplated by
the penultimate paragraph of this Section, as the case may
be; and
(2) the Company has paid or caused to be paid all other sums payable
with respect to the Outstanding Securities; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of the
entire indebtedness on all Outstanding Securities have been complied with.
Any deposits with the Trustee referred to in Section 403(1) above
shall be irrevocable and shall be made under the terms of an escrow trust
agreement in form and substance reasonably satisfactory to the Trustee. If any
Outstanding Securities are to be redeemed prior to their Stated Maturity
pursuant to any optional redemption provisions, the applicable escrow trust
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agreement shall provide therefor and the Company shall make such arrangements as
are satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company. If the Securities are
not to become due and payable at their Stated Maturity or upon call for
redemption within one year of the date of deposit, then the Company shall give,
not later than the date of such deposit, notice of such deposit to the Holders
of Securities.
Upon the satisfaction of the conditions set forth in this Section with
respect to all the Outstanding Securities, the terms and conditions of the
Securities, including the terms and conditions with respect thereto set forth in
this Indenture, shall no longer be binding upon, or applicable to, the Company;
PROVIDED, that the Company shall not be discharged from any payment obligations
in respect of Securities which are deemed not to be Outstanding under clause
(iii) of the definition thereof if such obligations continue to be valid
obligations of the Company under applicable law.
ARTICLE FIVE
Remedies
SECTION 501. EVENTS OF DEFAULT.
"EVENT OF DEFAULT", wherever used herein, means any one of the
following events that has occurred and is continuing (whatever the reason for
such Event of Default and whether it shall be occasioned by the provisions of
Article Eleven or be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) failure for 30 days to pay any interest on the Securities
(including Additional Interest, if any) when due (subject to the deferral
of any due date in the case of an Extension Period); or
(2) failure to pay any principal (or premium, if any) on the
Securities when due whether at Stated Maturity, upon redemption, by
declaration or otherwise; or
(3) failure to observe or perform in any material respect any other
covenant herein for 90 days after written notice requiring the Company
to remedy the same to the Company from the Trustee or to the Company
and the Trustee from the holders of at least 25% in aggregate principal
amount of the Outstanding Securities; or
(4) entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as
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properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company under any applicable Federal
or State law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of
substantially all of the property of the Company, or ordering the winding
up or liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in effect
for a period of 60 consecutive days; or
(5) (A) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or (B) the consent by the Company
or to the entry of a decree or order for relief in respect of itself in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against the
Company, or (C) the filing by the Company of a petition or answer or
consent seeking reorganization or relief under any applicable Federal or
State law, or (D) the consent by the Company to the filing of such petition
or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of
the Company or of all or substantially all of the property of the Company,
or (E) the making by the Company of an assignment for the benefit of
creditors, or (F) the taking of corporate action by the Company in
furtherance of any such action.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default specified
in Section 501(4) or 501(5)) occurs and is continuing, then and in every such
case the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Securities shall have the right to declare the principal (or
specific portion thereof) of and the interest on all the Securities, and any
other amount payable under the Indenture, to be due and payable immediately,
by a notice in writing to the Company (and to the Trustee if given by
Holders) PROVIDED, that if upon an Event of Default, the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities fail to declare such amounts to be immediately due and payable,
the holders of at least 25% in aggregate Liquidation Amount of Capital
Securities then Outstanding shall have such right, by a notice in writing to
the Company and the Trustee; and upon any such declaration such principal
amount (or specified portion thereof) of and the accrued interest (including
any Additional Interest) on all the Securities shall become immediately due
and payable. If an Event of Default specified in Section 501(4) or 501(5)
occurs, the principal amount of all the Securities shall automatically, and
without any declaration or other action on the part of the Trustee or any
Holder, become immediately due and payable. Payment of principal and interest
(including any Additional Interest) on such Securities shall remain
subordinated to the extent provided in Article Eleven.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter provided in this Article, the Holders of a majority
in aggregate principal amount of the Outstanding
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Securities, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue installments of interest (including any
Additional Interest) on all Securities,
(B) the principal of (and premium, if any, on) any Securities
which have become due otherwise than by such declaration of
acceleration and interest and Additional Interest, if any, thereon
at the rate borne by the Securities, and
(C) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
(2) all Events of Default, other than the non-payment of the
principal of Securities which has become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
If the Holders of a majority in principal amount of the outstanding
Securities fail to annul such declaration and waive such default, the holders
of a majority in aggregate Liquidation Amount of the Capital Securities
may rescind and annul such declaration and its consequences, subject to the
foregoing conditions.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Upon receipt by the Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, with respect to Securities
all or part of which are represented by a Global Security, a record date shall
be established for determining Holders of Outstanding Securities entitled to
join in such notice, which record date shall be at the close of business on the
day the Trustee receives such notice. The Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to join in
such notice, whether or not such Holders remain Holders after such record date;
PROVIDED, that, unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day which is 90
days after such record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of declaration of
acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice which has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 502.
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SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if:
(1) default is made in the payment of any installment of
interest (including any Additional Interest) on any Security when such
interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (and
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal (and premium, if any) and interest (including
any Additional Interest), and, in addition thereto, all amounts owing the
Trustee under Section 607. Payment of principal (and premium, if any) and
interest (including any Additional Interest) on such Securities shall remain
subordinated to the extent provided in Article Eleven notwithstanding that
such amount shall become immediately due and payable as herein provided.
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, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities and collect the
monies adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
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 or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal (and premium, if any) or
interest (including Additional Interest)) shall be entitled and empowered, by
intervention in such proceeding or otherwise, (i) to file and prove a claim for
the whole amount of principal (and premium, if any) and interest (including any
Additional Interest)
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owing and unpaid in respect to the Securities and to file such other papers or
documents as may be necessary or advisable and to take any and all actions as
are authorized under the Trust Indenture Act in order to have the claims of the
Holders and any predecessor to the Trustee under Section 607 allowed in any such
judicial proceedings, and (ii) in particular, the Trustee shall be authorized to
collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same in accordance with Section 506; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee for distribution in accordance with
Section 506 and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it and any predecessor Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; PROVIDED,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, subject to Article Eleven and after provision
for payment of all the amounts owing the Trustee and any predecessor Trustee
under Section 607, its agents and counsel, be for the ratable benefit of the
Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Subject to Article Eleven, any money or property collected or to be
applied 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 or property on account of principal (or premium, if
any) or interest (including any 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:
FIRST: To the payment of all amounts due the Trustee
and any predecessor Trustee under Section 607; and
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SECOND: To the payment of the amounts then due and
unpaid for principal of (and premium, if any) and interest
(including any Additional Interest) on the Securities in
respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such
Securities for principal (and premium, if any) 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.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver, assignee, trustee, liquidator, sequestrator or other
similar official or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities shall have made written
request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in aggregate principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all the Holders.
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SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest (including any Additional Interest) on such Security on
the respective Stated Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such right shall not be impaired without the consent of
such Holder. Any holder of the Capital Securities shall have the right, upon
the occurrence of an Event of Default described in Section 501(1) or 501(2)
hereof, to institute a suit directly against the Company for enforcement of
payment to such holder of principal of (and premium, if any) and (subject to
Section 307) interest (including any Additional Interest) on the Securities
having a principal amount equal to the aggregate Liquidation Amount of the
Capital Securities held by such holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee, or any Holder or any holder of Capital Securities
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, such Holder or such
holder of Capital Securities, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee, the Holders and
the holders of Capital Securities shall be restored severally and respectively
to their former positions hereunder, and thereafter all rights and remedies
of the Trustee, such Holder and such holder of Capital Securities shall
continue as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other 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.
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SECTION 511. DELAY OR OMISSION NOT WAIVER.
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 delay or omission of the Trustee or of any
Holder of any Security or any holder of any Capital 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 and the right and remedy given to the
holders of Capital Securities by Section 508 may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the
Holders or the holders of Capital Securities, as the case may be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee, PROVIDED that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture,
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction, and
(3) subject to the provisions of Section 601, the
Trustee shall have the right to decline to follow 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 be unjustly
prejudicial to the Holders not joining in any such direction
or would involve the Trustee in personal liability.
Upon receipt by the Trustee of any written notice directing the time, method or
place of conducting any such proceeding or exercising any such trust or power,
with respect to Securities all or part of which are represented by a Global
Security, a record date shall be established for determining Holders of
Outstanding Securities entitled to join in such notice, which record date shall
be at the close of business on the day the Trustee receives such notice. The
Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such notice, whether or not such Holders
remain Holders after such record date; PROVIDED, that, unless the Holders of a
majority in principal amount of the Outstanding Securities shall have joined in
such notice prior to the day which is 90 days after such record date, such
notice shall automatically and without further action by any Holder be canceled
and of no further effect. Nothing in this paragraph shall prevent a Holder, or
a proxy of a Holder, from giving, after expiration of such 90-day period, a new
notice identical to a notice which has been canceled
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pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section.
SECTION 513. WAIVER OF PAST DEFAULTS.
Subject to Sections 902 and 1010 hereof, the Holders of not less
than a majority in aggregate principal amount of the Outstanding Securities
affected thereby may waive any past default hereunder and its consequences,
except a default: (1) in the payment of the principal of (or premium, if
any) or interest (including any Additional Interest) on any Security (unless
such default has been cured and a sum sufficient to pay all matured
installments of interest (including any Additional Interest) and principal
(and premium, if any) due otherwise than by acceleration has been deposited
with the Trustee); or (2) in respect of a covenant or provision hereof
which under Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding Security affected. If the Holders of such
Securities fail to waive such default, the holders of not less than a
majority in aggregate Liquidation Amount of the Capital Securities shall have
such right.
Any such waiver shall be deemed to be on behalf of the Holders of all the
Securities or, in the case of a waiver by holders of Capital Securities, by all
holders of Capital Securities.
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 for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs against any such party litigant including
reasonable attorneys' fees, in the manner and to the extent provided in the
Trust Indenture Act having due regard to the merits and good faith of the claims
or defenses made by such party litigants; but the provisions of this Section
shall not apply 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, or to any suit
instituted by any Holder for the enforcement of the payment of the principal
of (or premium, if any) or interest (including any Additional Interest) on
any Security on or after the respective Stated Maturities expressed in such
Security.
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SECTION 515. WAIVER OF USURY, 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 usury, 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.
ARTICLE SIX
The Trustee
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee shall be as provided by
this Indenture and the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
(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 same degree of care and
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skill in their exercise, as a prudent person 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 willful 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;
and
(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 Holders pursuant to Section 512 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.
(d) 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 there shall be reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(e) 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 actual knowledge by a Responsible Officer of the
Trustee of the occurrence of any default hereunder, the Trustee shall transmit
by mail to all Holders of Securities, as their names and addresses appear in the
Securities Register, 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 premium,
if any) or interest (including any Additional Interest) on any Security, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders of Securities;
PROVIDED, FURTHER, that in the case of any default of the character specified in
Section 501(3), no such notice
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to Holders shall be given until at least 30 days after the occurrence thereof.
For the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default. For
purposes of this Section, the Trustee shall be deemed to have actual knowledge
of a default if it has received written notice of such default in the manner
contemplated by Section 105.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, security, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its choice and the
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 this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, indenture, Security, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see
fit, and, if the
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Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney; and
(g) 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.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be accountable for
the use or application by the Company of the Securities or the proceeds
thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar, or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 608 and 613, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar, 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 in writing with the Company.
SECTION 607. COMPENSATION; REIMBURSEMENT; AND INDEMNITY.
The Company agrees
(1) to pay to the Trustee from time to time such reasonable
compensation as the Company and the Trustee shall from time to time
agree in writing for all
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services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any and all loss, damage, claim, liability, action, suit,
cost or expense (including the reasonable compensation and the
expenses and disbursements of its agents and counsel) of any kind and
nature whatsoever incurred without negligence or bad faith, arising
out of or in connection with the acceptance or administration of this
trust 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.
In addition, the Company hereby agrees to pay all amounts owing
under Section 8.06 of the Trust Agreement and to enter into and perform an
Expense Agreement substantially in the Form of Exhibit A to this Indenture.
To secure the Company's payment obligations under this Section 607, the
Trustee shall have a lien against all money or property held or collected by
the Trustee, which lien shall be subordinate to the rights of the
Securityholders but prior to the rights of the Company to any such money or
property.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 501(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Reform Act of 1978 or any successor statute.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, Section 310(b) the Trust Indenture Act and this Indenture.
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SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such
and has a combined capital and surplus of at least $50,000,000, subject to
supervision or examination by Federal or State authority. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the
purposes of this Section and to the extent permitted by the Trust Indenture
Act, the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article. Neither the Company nor any Person directly or indirectly
controlling, controlled by or under common control with the Company shall
serve as Trustee for the Securities issued hereunder.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in aggregate principal amount of the Outstanding Securities, 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 who has been
a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or
by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
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then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor
Trustee. If the Company fails to appoint a successor Trustee within thirty
(30) days of such resignation, removal, or incapability, or the occurrence of
such vacancy, the retiring Trustee may, subject to Section 514, petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of
the Holders of a majority in aggregate principal amount of the Outstanding
Securities delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor Trustee
appointed by the Company or any court. If no successor Trustee shall have
been so appointed by the Company or the Holders and accepted appointment in
the manner hereinafter provided, any Holder who has been a bona fide Holder
of a Security for at least six months may, subject to Section 514, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; PROVIDED that, on request of the Company or
the successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such successor Trustee,
the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in this Section.
In case of the appointment hereunder of a successor Trustee, the Company,
the retiring Trustee and each successor Trustee shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept
such appointment and which 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; and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to
the extent provided therein and each such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts, and duties of the retiring Trustee; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
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.
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SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated, and in case any
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor Trustee or in
the name of such successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided anywhere in the
Securities or in this Indenture that the certificate of the Trustee will have.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents which shall
be authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration or transfer or partial
redemption thereof, 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. 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. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, or of any State, Territory or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at lease annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so
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published. If 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 an Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, 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 such Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
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 give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities referred to in the within mentioned Indenture.
Dated:
-----------------------------------
Wilmington Trust Company
As Trustee
By:
--------------------------------
As Authenticating Agent
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By:
--------------------------------
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee:
(a) semiannually, not later than January 15 and July 15 in each
year, a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders as of such January 1 and July
1, 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;
In each case to the extent such information is in the possession or control
of the Company and has not otherwise been received by the Trustee in its
capacity as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
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SECTION 703. REPORTS BY TRUSTEE.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals of not
more than 12 months shall be transmitted no later than July 15 in each calendar
year, commencing with the first July 15 after the first issuance of Securities
under this Indenture.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed and the Nasdaq National Market if the Securities
are quoted thereon, with the Commission and with the Company. The Company will
notify the Trustee whenever the Securities are listed on any stock exchange.
SECTION 704. REPORTS BY COMPANY.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; PROVIDED that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission. Notwithstanding that the Company may not be required to
remain subject to the reporting requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the Company shall continue to file with the
Commission and provide the Trustee with the annual reports and the information,
documents and other reports which are specified in Sections 13 and 15(d) of the
Securities Exchange Act of 1934. The Company also shall comply with the other
provisions of Trust Indenture Act Section 314(a).
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
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(1) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties
and assets of the Company substantially as an entirety shall be a
corporation, partnership, trust or other entity, shall be organized
and validly existing under the laws of the United States of America,
any State thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of (and premium, if any) and interest
(including any Additional Interest) on all the Securities and the
performance or observance of every covenant of this Indenture and the
Securities on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing;
(3) such consolidation or merger or conveyance, transfer or
lease of properties or assets of the Company is permitted under the
Trust Agreement and the Parent Guarantee and does not give rise to any
breach or violation of, the Trust Agreement or the Parent Guarantee;
and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease complies
with this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with; and the
Trustee, subject to Section 601, may rely upon such Officers'
Certificate and Opinion of Counsel as conclusive evidence that
such transaction complies with this Section.
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the
Company with or into, any other Person or any conveyance, transfer or lease
of the properties and assets of the Company substantially as an entirety in
accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named as
the Company herein; and in the event of any such conveyance, transfer or
lease, the
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Company shall be discharged from all obligations and covenants under this
Indenture and the Securities and may be dissolved and liquidated.
Such successor Person may cause to be signed, and may issue either in
its own mane 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 Person
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 pursuant to such
provisions and any Securities which such successor Person thereafter shall cause
to be signed and delivered to the Trustee on its behalf for the purpose pursuant
to such provisions. 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 has been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease,
such changes in phraseology and form may be made in the Securities thereafter to
be issued as may be appropriate.
ARTICLE NINE
Supplemental Indentures
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
(2) to convey, transfer, assign, mortgage or pledge any property
to or with the Trustee or to surrender any right or power herein
conferred upon the Company; or
(3) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company; or
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(4) to add any additional Events of Default; or
(5) 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 that
such action pursuant to this clause (5) shall not materially adversely
affect the interests of the Holders of the Securities or, so long as
any of the Capital Securities shall remain outstanding, the holders
of the Capital Securities; or
(6) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee; or
(7) to comply with the requirements of the Commission in order
to effect or maintain the qualification of this Indenture under the
Trust Indenture Act.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities, by Act of said
Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the Holders under this
Indenture; PROVIDED, HOWEVER, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected
thereby,
(1) except to the extent permitted and subject to the conditions
set forth in Section 301 with respect to the extension of interest
payment period of the Securities, change the Stated Maturity of,
the principal of, or any installment of interest (including any
Additional Interest) on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or reduce any premium payable upon
the redemption thereof, or change the place of payment where, or the coin
or currency in which, any Security or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date), or modify the provisions of this Indenture
with respect to the subordination of the Securities in a manner adverse to
the Holders, or
(2) reduce the percentage in aggregate principal amount of the
Outstanding Securities, the consent of the Holders of which is required
for any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of
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compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1007, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby;
PROVIDED, that, so long as any of the Capital Securities remains outstanding,
no such amendment shall be made that adversely affects the holders of the
Capital Securities in any material respect, and no termination of this Indenture
shall occur, and no waiver of any Event of Default or compliance with any
covenant under this Indenture shall be effective, without the prior consent
of the holders of at least a majority of the aggregate Liquidation Amount of
the Outstanding Capital Securities unless and until the principal of and any
premium on the Securities and all accrued and, subject to Section 307, unpaid
interest (including any Additional Interest) thereon have been paid in full,
PROVIDED FURTHER, that so long as any of the Capital Securities remains
outstanding, no amendment shall be made to Section 508 of this Indenture
without the prior consent of the holders of each Capital Security then
Outstanding unless and until the principal (and premium, if any) of the
Securities and all accrued and (subject to Section 301) unpaid interest
(including any Additional Interest) thereon have been paid in full.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture, and
that all conditions precedent have been complied with. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a
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part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Company, bear a notation in form approved by the Company as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
ARTICLE TEN
Covenants; Representations and Warranties
SECTION 1001. PAYMENT OF PRINCIPAL AND INTEREST.
The Company covenants and agrees for the benefit of the Securities
that it will duly and punctually pay the principal of (and premium, if any) and
interest (including any Additional Interest) on the Securities in accordance
with the terms of the Securities and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in Wilmington, Delaware, an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer or exchange, and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company initially appoints the Trustee, acting
through its Corporate Trust Office, as its agent for said purposes. The Company
will give prompt written notice to the Trustee of any change in the location of
any such office or agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the
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Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in the United States) where the Securities may be presented
or surrendered for any or all 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 the United States for such purposes. The Company will
give prompt written notice to the Trustee of any such designation and any change
in the location of any such office or agency.
SECTION 1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent, it
will, on or before each due date of the principal (and premium, if any) of or
interest (including any Additional Interest), on any of the Securities,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal (and premium, if any) or 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 will
promptly notify the Trustee of its failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to 10:00 a.m. New York City time on each due date of the principal (or
premium, if any) of or interest (including any Additional Interest) on any
Securities, deposit with a Paying Agent a sum sufficient to pay the principal
(and premium, if any) or 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 (and premium, if any) or interest (including any
Additional Interest), and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will (i) comply with the provisions of the Trust Indenture
Act applicable to it as a Paying Agent, (ii) hold all sums held by it for the
payment of the principal of (and premium, if any) or interest (including any
Additional Interest) on Securities in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, (iii) give the Trustee notice of any default
by the Company (or any other obligor upon the Securities) in the making of
any payment of principal (and premium, if any) or interest (including any
Additional Interest), and (iv) at any time during the continuance of any such
default by the Company (or any other obligor upon the Securities) in the
making of any payment of principal (and premium, if any) or interest, upon
written request of the Trustee, forthwith pay to the Trustee all sums held in
trust by such Paying Agent.
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The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by the Company or any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest (including any Additional Interest) on any
Security and remaining unclaimed for two years after such principal (and
premium, if any) or interest has become due and payable shall (unless
otherwise required by mandatory provision of applicable escheat or abandoned
or unclaimed property law) be paid to the Company on Company Request, or (if
then held by the Company) shall (unless otherwise required by mandatory
provision of applicable escheat or abandoned or unclaimed property law) be
discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect
to such trust money, and all liability of the Company as trustee thereof,
shall thereupon cease.
SECTION 1004. STATEMENT BY OFFICERS AS TO COMPLIANCE.
The Company will deliver to the Trustee, within 120 days after the end
of each calendar year of the Company ending after the date hereof, an Officers'
Certificate covering the preceding calendar year, stating whether or not to the
best knowledge of the signers thereof the Company is in default in the
performance, observance or fulfillment of or compliance with any of the
terms, provisions, covenants and conditions of this Indenture (without regard to
any period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION 1005. ADDITIONAL SUMS.
In the event that (i) AmerUs Capital I is the Holder of all of
the Outstanding Securities, (ii) a Tax Event shall have occurred and be
continuing and (iii) the Company shall not have redeemed the Securities
pursuant to Section 1201 or terminated AmerUs Capital I pursuant to Section
9.02(b) of the Trust Agreement, so long as no Event of Default has occurred
and is continuing the Company shall pay to AmerUs Capital I (and its
permitted successors or assigns under the Trust Agreement) for so long as
AmerUs Capital I (or its permitted successor or assignee) is the registered
holder of any Securities, such additional amounts as may be necessary in
order that the amount of distributions (including any Additional Amounts (as
defined in the Trust Agreement)) then due and payable by AmerUs Capital I on
the
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Capital Securities and Common Securities that at any time remain outstanding
in accordance with the terms thereof shall not be reduced as a result of any
Additional Taxes arising from such Tax Event (the "Additional Sums").
Whenever in this Indenture or the Securities there is a reference in any
context to the payment of principal of or interest on the Securities, such
mention shall be deemed to include mention of the payments of the Additional
Sums provided for in this paragraph to the extent that, in such context,
Additional Sums are, were or would be payable in respect thereof pursuant to
the provisions of this paragraph and express mention of the payment of
Additional Sums (if applicable) in any provisions hereof shall not be
construed as excluding Additional Sums in those provisions hereof where such
express mention is not made, PROVIDED, however, that the deferral of interest
payments pursuant to Section 301 or the Securities shall not defer the payment
of any Additional Sums that may be due and payable.
SECTION 1006. ADDITIONAL COVENANTS.
The Company covenants and agrees with each Holder of Securities that
it shall not, and it will not permit any Subsidiary of the Company to, (a)
declare or pay any dividends or distributions on, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of the Company's outstanding
capital stock, or (b) make any payment of principal, interest or premium, if
any, on or repay, repurchase or redeem any debt securities that rank PARI PASSU
with or junior to the Securities or make any guarantee payments with respect to
any guarantee by the Company of the debt Securities of any Subsidiary of the
Company that by their terms rank PARI PASSU or junior in interest to the
Securities (other than (a) dividends or distributions in Common Stock of the
Company, (b) payments under the Parent Guarantee, and (c) purchases of Common
Stock related to the issuance of Common Stock under any of the Company's benefit
plans for its directors, officers or employees) if at such time (i) there shall
have occurred and be continuing any event that (a) with the giving of notice or
the lapse of time or both, would constitute an Event of Default hereunder and
(b) in respect of which the Company shall not have taken reasonable steps to
cure, (ii) the Company shall be in default with respect to its payment of any
obligations under the Parent Guarantee or (iii) the Company shall have given
notice of its selection of an Extension Period as provided herein and shall not
have rescinded such notice and such Extension Period, or any extension
thereof, shall be continuing.
The Company also covenants (i) to maintain directly or indirectly 100%
ownership of the Common Securities of AmerUs Capital I; PROVIDED, HOWEVER, that
any permitted successor of the Company hereunder may succeed to the Company's
ownership of such Common Securities, (ii) not to voluntarily dissolve, wind-up
or liquidate AmerUs Capital I, except (a) in connection with a distribution of
the Securities to the holders of Capital Securities in liquidation of AmerUs
Capital I or (b) in connection with certain mergers, consolidations or
amalgamations permitted by the Trust Agreement, and (iii) to use its reasonable
efforts, consistent with the terms and provisions of the Trust Agreement, to
cause AmerUs Capital I to remain a business trust and to be classified as a
grantor trust for United States Federal income tax purposes, except in
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connection with a distribution of the Securities to the holders of Capital
Securities in liquidation of AmerUs Capital I.
SECTION 1007. WAIVER OF CERTAIN COVENANTS.
Except as otherwise specified as contemplated by Section 301 for
Securities, the Company may, with respect to the Securities, omit in any
particular instance to comply with any term, provision or condition set forth
in any covenant provided pursuant to Section 901(2) for the benefit of the
Holders if before or after the time for such compliance the Holders of at
least a majority in aggregate principal amount of the Outstanding Securities
shall, by Act of such Holders, either waive such compliance in such instance
or generally waive compliance with such term, provision or condition, but no
such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force
and effect.
ARTICLE ELEVEN
Subordination of Securities
SECTION 1101. SECURITIES SUBORDINATE TO SENIOR DEBT.
The Company covenants and agrees, and each Holder of a Security, by
its acceptance thereof, likewise covenants and agrees, that, to the extent and
in the manner hereinafter set forth in this Article (subject to Article Four),
the payment of the principal of (and premium, if any) and interest (including
any 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 of
all amounts then due and payable in respect of all Senior Debt.
The Trustee and the Holders shall take such action (including, without
limitation, the delivery of this Indenture to an agent for the holders of Senior
Debt or consent to the filing of a financing statement with respect hereto) as
may, in the opinion of counsel designated by the holders of a majority in
principal amount of the Senior Debt at the time outstanding, be necessary or
appropriate to assure the effectiveness of the subordination effected by these
provisions.
The provisions of Sections 1102, 1103 and 1104 hereof shall not impair any
rights, interests, remedies or powers of any secured creditor of the Company in
respect of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
The securing of any obligations of the Company, otherwise ranking on a
parity with the Securities or ranking junior to the Securities, shall not be
deemed to prevent such obligations from constituting, respectively, obligations
ranking on a parity with the Securities or ranking junior to the Securities.
SECTION 1102. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the case of the pendency of (a) any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company, its creditors or its
property, (b) any proceeding for the liquidation, dissolution or other
winding up of the Company, voluntary or involuntary, whether or not involving
insolvency or bankruptcy proceedings, (c) any assignment by the Company for
the benefit of creditors or (d) any other marshalling of the assets of the
Company, (each such event, if any, herein sometimes referred to as a
"Proceeding"), then the holders of Senior Debt shall be entitled to receive
payment in full of principal of (and premium, if any) and interest, if any,
on such Senior Debt (including any interest thereon accruing after the
commencement of any such Proceeding), or provision shall be made for such
payment in cash or cash equivalents or otherwise in a manner satisfactory to
the holders of Senior Debt, before the Holders of the Securities are entitled
to receive or retain any payment or distribution of any kind or character,
whether in cash, property or securities (including any payment or
distribution which may be payable or deliverable by reason of the payment of
any other Debt of the Company (including the Securities) subordinated to the
payment of the
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Securities, such payment or distribution being hereinafter referred to as a
"Junior Subordinated Payment"), on account of principal of (or premium, if any)
or interest (including any Additional Interest) on the Securities or on account
of the purchase or other acquisition of Securities by the Company or any
Subsidiary and to that end the holders of Senior Debt shall be entitled to
receive, for application to the payment thereof, any payment or distribution of
any kind or character, whether in cash, property or securities, including any
Junior Subordinated Payment, which may be payable or deliverable in respect of
the Securities in any such Proceeding.
In the event of any Proceeding, after payment in full of all sums owing
with respect to Senior Debt, the Holders of the Securities, together with the
holders of any obligations of the Company ranking on a parity with the
Securities, shall be entitled to be paid from the remaining assets of the
Company the amounts at the time due and owing on account of unpaid principal of
(and premium, if any) and interest on the Securities and such other obligations
before any payment or other distribution, whether in cash, property or
otherwise, shall be made on account of any capital stock or any obligations of
the Company ranking junior to the Securities and such other obligations.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any Junior Subordinated
Payment, before all Senior Debt is paid in full or payment thereof is
provided for in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, then and in such event such
payment or distribution 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 Debt remaining unpaid, to the
extent necessary to pay all Senior Debt in full, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Debt.
For purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment which securities are subordinated in
right of payment to all then outstanding Senior Debt at least to the same
extent as 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 sale of
all or substantially all of its properties and assets as an entirety to another
Person upon the terms and conditions set forth in Article Eight shall not be
deemed 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 sale such properties and assets as an entirety, as the case may be,
shall, as a part of such consolidation, merger, or sale comply with the
conditions set forth in Article Eight.
SECTION 1103. PRIOR PAYMENT TO SENIOR DEBT UPON ACCELERATION OF SECURITIES.
In the event that any Securities are declared due and payable before
their Stated Maturity, then and in such event the holders of the Senior Debt
outstanding at the time such Securities so become due and payable shall be
entitled to receive payment in full of all amounts due on or in respect of such
Senior Debt (including any amounts due upon acceleration), or provision shall be
made for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, before the Holders of the Securities
are entitled to
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receive any payment or distribution of any kind or character, whether in cash,
properties or securities (including any Junior Subordinated Payment) by the
Company on account of the principal of (or premium, if any) or interest
(including any Additional Interest) on the Securities or on account of the
purchase or other acquisition of Securities by the Company or any Subsidiary.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, then and in such event such payment
shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 1102 would be applicable.
SECTION 1104. NO PAYMENT WHEN SENIOR DEBT IN DEFAULT.
(a) In the event and during the continuation of any default in the
payment of principal of (or premium, if any) or interest on any Senior Debt,
when the same becomes due and payable, whether at maturity or at a date fixed
for prepayment or by declaration of acceleration or otherwise, then, upon
written notice of such default to the Company by the holders of Senior Debt
or any trustee therefor, unless and until such event of default shall have
been cured or waived or shall have ceased to exist, then no payment or
distribution of any kind or character, whether in cash, properties or
securities (including any Junior Subordinated Payment) shall be made by the
Company on account of principal of (or premium, if any) or interest
(including any Additional Interest), if any, on the Securities or on account
of the purchase or other acquisition of Securities by the Company or any
Subsidiary.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 1102 would be applicable.
SECTION 1105. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent (a) the Company, at any time except during
the pendency of any Proceeding referred to in Section 1102 or under the
conditions described in Sections 1103 and
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1104, from making payments at any time of principal of (and premium, if any) or
interest on the Securities, or (b) the application by the Trustee of any money
or Government Obligations deposited with it hereunder to the payment of or on
account of the principal of (and premium, if any) or interest (including any
Additional Interest) on the Securities or the retention of such payment by the
Holders, if, at the time of such application by the Trustee, it did not have
knowledge that such payment would have been prohibited by the provisions of this
Article.
SECTION 1106. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR DEBT.
Subject to the payment in full of all amounts due or to become due
on all Senior Debt, or the provision for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of the
Senior Debt, the Holders of the Securities shall be subrogated to the extent
of the payments or distributions made to the holders of such Senior Debt
pursuant to the provisions of this Article (equally and ratably with the
holders of all indebtedness of the Company which by its express terms is
subordinated to Senior Debt of the Company to substantially the same extent
as the Securities are subordinated to the Senior Debt and is entitled to like
rights of subrogation by reason of any payments or distributions made to
holders of such Senior Debt) to the rights of the holders of such Senior Debt
to receive payments and distributions of cash, property and securities
applicable to the Senior Debt until the principal of (and premium, if any)
and interest on the Securities shall be paid in full. For purposes of such
subrogation or assignment, no payments or distributions to the holders of the
Senior Debt 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 over pursuant to the provisions of this Article to
the holders of Senior Debt by Holders of the Securities or the Trustee,
shall, as among the Company, its creditors other than holders of Senior Debt,
and the Holders of the Securities, be deemed to be a payment or distribution
by the Company to or on account of the Senior Debt.
SECTION 1107. 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 of the Securities on the
one hand and the holders of Senior Debt on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities is intended to
or shall (a) impair, as between the Company and the Holders of the Securities,
the obligations of the Company, which are absolute and unconditional, to pay to
the Holders of the Securities the principal of (and premium, if any) and
interest (including any 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 their rights in relation to the holders of
Senior Debt; or (c) prevent the Trustee or the Holder of any Security (or to
the extent expressly provided herein, the holder of any Capital Security) from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture including, without limitation, filing and voting claims in any
Proceeding, subject to the rights, if any, under this Article of the holders of
Senior Debt to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
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SECTION 1108. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Security by his or her acceptance thereof authorizes
and directs the Trustee on his or her behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination provided
in this Article and appoints the Trustee his or her attorney-in-fact for any and
all such purpose.
SECTION 1109. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may have or otherwise
be charged with.
Without in any way limiting the generality of the immediately preceding
paragraph, the holders of Senior Debt may, at any time and from to time, without
the consent of or notice to the Trustee or the Holders of the Securities,
without incurring responsibility to such Holders of the Securities and without
impairing or releasing the subordination provided in this Article or the
obligations hereunder of such Holders of the Securities to the holders of Senior
Debt, 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
Debt, or otherwise amend or supplement in any manner Senior Debt or any
instrument evidencing the same or any agreement under which Senior Debt is
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt; (iii) release any Person
liable in any manner for the collection of Senior Debt; and (iv) exercise or
refrain from exercising any rights against the Company and any other Person.
SECTION 1110. 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. 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 would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Debt or from any trustee, agent or representative
therefor (whether or not the facts contained in such notice are true); PROVIDED,
HOWEVER, that if the Trustee shall not have received the notice provided for in
this Section at least two Business Days prior to the date upon which by the
terms hereof any monies may become payable for any purpose (including, without
limitation, the payment of the principal of (and premium, if any) or interest
(including any Additional Interest) on any Security), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such monies and to apply the same to the purposes for which
they were received, and shall not be affected by any notice to the contrary
which may be received by it within two Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing such
Person to be a holder of Senior Debt (or a trustee or attorney-in-fact therefor)
to establish that such notice has been given by a holder of Senior Debt (or a
trustee or attorney-in-fact therefor). In the event that the Trustee determines
in good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Debt 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 Debt 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, and if such evidence is not furnished,
the Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
SECTION 1111. 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 Article Six, 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,
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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 Debt and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article.
SECTION 1112. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT.
The Trustee, in its capacity as trustee under this Indenture, shall
not be deemed to owe any fiduciary duty to the holders of Senior Debt 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 Debt shall be
entitled by virtue of this Article or otherwise.
SECTION 1113. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR DEBT; PRESERVATION OF
TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article in respect of any Senior Debt which may at any
time held by it, to the same extent as any other holder of Senior Debt, and
nothing in this Indenture shall deprive the Trustee of any of its rights as such
holder.
SECTION 1114. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee 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 1115. CERTAIN CONVERSIONS OR EXCHANGES DEEMED PAYMENT.
For the purposes of this Article only, (a) the issuance and delivery
of junior securities upon exchange of Securities shall not be deemed to
constitute a payment or distribution on account of the principal of (or premium,
if any) or interest (including any Additional Interest) on Securities or on
account of the purchase or other acquisition of Securities, and (b) the payment,
issuance or delivery of cash, property or securities (other than junior
securities) upon exchange of a Security shall be deemed to constitute payment on
account of the principal of such security. For the purposes of this Section,
the term "junior securities" means (i) shares of any stock of any class of the
Company and (ii) securities of the
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Company which are subordinated in right of payment to all Senior Debt which may
be outstanding at the time of issuance or delivery of such securities to
substantially the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article.
ARTICLE TWELVE
Redemption of Securities
SECTION 1201. APPLICABILITY OF THIS ARTICLE.
Redemption of Securities as permitted or required by any form of
Security issued pursuant to this Indenture shall be made in accordance with such
form of Security and this Article; PROVIDED, however, that if any provision of
any such form of Security shall conflict with any provision of this Article, the
provision of such form of Security shall govern. Except as otherwise set forth
in the form of Security, each Security shall be subject to partial redemption
only in the amount of $1,000, or integral multiples thereof.
SECTION 1202. 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 election of the Company, the Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities to be redeemed PROVIDED that, for so
long as the Securities are held by AmerUs Capital I, such notice shall be
given not less than 45 nor more than 75 days prior to such Redemption Date
(unless a shorter notice shall be satisfactory to the Property Trustee). In
the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities, the
Company shall furnish the Trustee with an Officers' Certificate and an
Opinion of Counsel evidencing compliance with such restriction.
SECTION 1203. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 75 days prior to
the Redemption Date by the Trustee, from the Outstanding Securities 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 a portion of the principal amount of any Security, provided that the
unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such security.
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The Trustee shall promptly notify the Company in writing of the
Securities selected for partial redemption and 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 1204. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at the address
of such Holder as it appears in the Security Register PROVIDED that, for so
long as the Securities are held by AmerUs Capital I, such notice shall be
given not less than 45 nor more than 75 days prior to such Redemption Date
(unless a shorter notice shall be satisfactory to the Property Trustee).
All notices of redemption shall identify the Securities to be redeemed
(including CUSIP number) and shall state:
(1) the Redemption Date,
(2) the Redemption Price, or, if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, the
estimate of the Redemption Price together with a statement that it is
an estimate and that the actual Redemption Price will be calculated on
the third Business Day prior to the Redemption Date (and if an estimate
is provided, a further notice shall be sent of the actual Redemption
Price on the date that such Redemption Price is calculated);
(3) if less than all Outstanding Securities are to be redeemed, the
identification (and, in the case of partial redemption, the respective
principal amounts) of the particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security or portion thereof, and that interest
thereon, if any, shall cease to accrue on and after said date, and
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price.
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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 and shall not be
irrevocable. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by mail or any
defect in the notice to the Holder of any Security designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
SECTION 1205. DEPOSIT OF REDEMPTION PRICE.
Prior to 10:00 a.m. New York City time on the Redemption Date
specified in the notice of redemption, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an
amount of money sufficient to pay the Redemption Price, with any interest, of
all the Securities (or portions thereof) so called for redemption.
SECTION 1206. SECURITIES PAYABLE ON REDEMPTION DATE.
If any notice of redemption has been given as provided in
Section 1204, the Securities or portion of Securities with respect to which
such notice has been given shall become due and payable on the Redemption
Date at the place or places stated in such notice and at the Redemption Price
therein specified, together with accrued interest to the Redemption Date, and
from and after such date (unless the Company shall default in the payment of
the Redemption Price and accrued interest) such Securities shall cease to
bear interest. On presentation and surrender of such Securities at a place of
payment in said notice specified, the said Securities or the specified
portions thereof shall be paid and redeemed by the Company at the applicable
Redemption Price, together with accrued interest to the Redemption Date;
PROVIDED, HOWEVER, that installments of interest (including any Additional
Interest) whose corresponding Interest Payment Date is on or prior to the
Redemption Date will 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 record dates according to their terms and the provisions of
Section 307.
Upon presentation of any Security redeemed in part only, the Company
shall execute and the Trustee shall authenticate and deliver to the Holder
thereof, at the expense of the Company, a new Security or Securities, of
authorized denominations, in aggregate principal amount equal to the unredeemed
portion of the Security so presented and having the same date of issuance,
Stated Maturity and terms. If a Global Security is so surrendered, such new
Security will also be a new Global Security.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal of and premium, if any, on such
Security shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
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SECTION 1207. OPTIONAL REDEMPTION; CONDITIONS TO OPTIONAL REDEMPTION.
At any time on or after ___________, 2007, the Company shall have
the right, subject to the last paragraph of this Section, to redeem the
Securities, in whole at any time or in part from time to time, at a
Redemption Price equal to the following prices expressed in percentages of
the principal amount of Securities to be redeemed, plus any accrued but
unpaid interest, including Additional Interest, if any, to but excluding
the Redemption Date; if redeemed during the 12-month period
beginning ___________:
Year Redemption Price
---- ----------------
2007 %
2008
2009
2010
2011
2012
2013
2014
2015
2016
and at 100% on or after _________, 2017. The Company shall not redeem
the Securities in part unless all accrued and unpaid interest (including any
Additional Interest) has been paid in full on all Securities Outstanding for
all semi-annual interest periods terminating on or prior to the Redemption Date.
If a Special Event shall occur and be continuing prior to
__________, 2007, the Company may, at its option, within 90 days of the
occurrence of such Special Event, subject to the last paragraph of this
Section and the other provisions of this Article Twelve, redeem the
Securities in whole but not in part, at a Redemption Price for each Capital
Security equal to the Make-Whole Amount plus accrued but unpaid interest,
including Additional Interest, if any, to but excluding the Redemption Date.
The "Make-Whole Amount" shall be equal to the greater of (i)
100% of the principal amount of such Securities or (ii) as determined by a
Quotation Agent (as defined below), the sum of the present values of the
principal amount and premium payable as part of the Redemption Price with
respect to an optional redemption of such Securities on _____, 2007, together
with scheduled payments of interest from the Redemption Date to _______, 2007
(the "Remaining Life"), in each case discounted to the Redemption Date on a
semi-annual basis (assuming a 360-day year consisting of 30-day months) at
the Adjusted Treasury Rate (as defined below).
"Adjusted Treasury Rate" means, with respect to any Redemption Date,
the Treasury Rate (as defined below) plus (i) ___% if such Redemption Date
occurs on or before ________, 1998 or (ii) ___% if such Redemption Date occurs
after ________, 1998.
"Treasury Rate" means (i) the yield, under the heading which
represents the average for the immediately prior week, appearing in the most
recently published statistical release designated "H.15(519)" or any successor
publication which is published weekly by the Federal Reserve and which
establishes yields on actively traded United States Treasury securities adjusted
to constant maturity under the caption "Treasury Constant Maturities," for the
maturity corresponding to the Remaining Life (if no maturity is within three
months before or after the Remaining Life, yields for the two published
maturities most closely corresponding to the Remaining Life shall be determined
and the Treasury Rate shall be interpolated or extrapolated from such yields on
a straight-line basis, rounding to the nearest month) or (ii) if such release
(or any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the semi-annual equivalent yield to maturity of the Comparable Treasury Issue
(as defined below), calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date. The Treasury Rate shall be calculated
on the third Business Day preceding the Redemption Date.
"Comparable Treasury Issue" means, with respect to any Redemption
Date, the United States Treasury security selected by the Quotation Agent as
having a maturity comparable to the Remaining Life that would be utilized, at
the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
Remaining Life. If no United States Treasury security has a maturity which is
within a period from three months before to three months after _______, 2007,
the two most closely corresponding United States Treasury securities shall be
used as the Comparable Treasury Issue, and the Treasury Rate shall be
interpolated or extrapolated on a straight-line basis, rounding to the nearest
month using such securities.
"Quotation Agent" means Goldman, Sachs & Co. and their successors;
providing, however, that if the foregoing shall cease to be a primary U.S.
Government securities dealer in New York City (a "Primary Treasury Dealer"), the
Company shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer" means (i) the Quotation Agent and (ii) any
other Primary Treasury Dealer selected by the Trustee after consultation with
the Company.
"Comparable Treasury Price" means (i) the average of five Reference
Treasury Dealer Quotations (as defined below) for such Redemption Date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations, or
(ii) if the Trustee obtains fewer than three such Reference Treasury Dealer
Quotations, the average of all such Quotations.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such Redemption Date.
For so long as AmerUs Capital I is the Holder of all Securities
Outstanding, the proceeds of any redemption described in this Section shall be
used by AmerUs Capital I to redeem Trust Securities in accordance with their
terms.
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture 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.
AMERUS LIFE HOLDINGS, INC.
By:
--------------------------------
Name:
Title:
Attest:
- ----------------------------
WILMINGTON TRUST COMPANY
By:
-------------------------------
Name:
Title:
Attest:
- ----------------------------
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STATE OF ________ ) ss.:
COUNTY OF ________ )
On the _____ day of _________________ 1997, before me personally came
[________________], to me known, who, being by me duly sworn, did depose and say
that he/she is the [____________________] of AmerUs Life Holdings, Inc. one of
the corporations described in and which executed the foregoing instrument; and
that he/she signed his/her name thereto by authority of the Board of Directors
of such corporation.
------------------------------
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STATE OF ________ ) ss.:
COUNTY OF ________ )
On the _____ day of ________________, 1997, before me personally came
____________________, to me known, who, being by me duly sworn, did depose and
say that he/she is a ________________ of Wilmington Trust Company a Delaware
banking corporation described in and which executed the foregoing instrument;
and that he/she signed his/her name thereto by authority of the Board of
Directors of such corporation.
-----------------------------
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EXHIBIT A
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of 1997, between AmerUs Life
Holdings, an Iowa corporation ("ALH"), and AmerUs Capital I, a Delaware business
trust (the "Trust").
WHEREAS, the Trust intends to issue its % Common Securities
(the "Common Securities") to and receive Debentures from ALH and to issue and
sell % Capital Securities, Series A (the "Capital Securities") with such
powers, preferences and special rights and restrictions as are set forth in
the Amended and Restated Trust Agreement of the Trust dated as of
1997, among ALH, as Depositor, Wilmington Trust Company, as Property
Trustee and the Administrative Trustees named therein, and the holders from
time to time of undivided beneficial interests in the assets of the Issuer,
as the same may be amended from time to time (the "Trust Agreement");
WHEREAS, ALH will directly or indirectly own all of the Common
Securities of the Trust and will issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Capital Securities, which purchase ALH hereby agrees shall benefit ALH and
which purchase ALH acknowledges will be made in reliance upon the execution and
delivery of this Agreement, ALH and Trust hereby agree as follows:
ARTICLE I
Section 1.01. GUARANTEE BY ALH. Subject to the terms and conditions
hereof, ALH hereby irrevocably and unconditionally guarantees to each person or
entity to whom the Trust is now or hereafter becomes indebted or liable (the
"Beneficiaries") the full payment, when and as due, of any and all Obligations
(as hereinafter defined) to such Beneficiaries. As used herein, "Obligations"
means any indebtedness, expenses or liabilities of the Trust (including, without
limitation, the fees, expenses and indemnities of the Trustees), other than
obligations of the Trust to pay to holders of any Trust Securities or other
similar interests in the Trust the amounts due such holders pursuant to the
terms of the Trust Securities or such other similar interests, as the case
may be. This Agreement is intended to be for the benefit of, and to be
enforceable by, all such Beneficiaries, whether or not such Beneficiaries have
received notice hereof.
Section 1.02. SUBORDINATION OF GUARANTEE. The guarantee and other
liabilities and obligations of ALH under this Agreement shall constitute
unsecured obligations of ALH and shall rank subordinate and junior in right
of payment to all Senior Debt (as defined in the Indenture) of ALH to the
extent and in the manner set forth in the Indenture with respect to the
Debentures, and the provisions of Article Eleven of the Indenture will apply,
MUTATIS MUTANDIS, to the obligations of ALH hereunder. The obligations of ALH
hereunder do not constitute Senior Debt (as defined in the Indenture) of ALH.
Section 1.03. TERM OF AGREEMENT. This Agreement shall terminate
and be of no further force and effect upon dissolution of the Trust;
provided, however, that this Agreement shall continue to be effective or
shall be reinstated, as the case may be, if at any time any holder of Capital
Securities or any Beneficiary must restore payment of any sums paid under the
Capital Securities, under any Obligation, under the Guarantee Agreement dated
the date hereof by ALH and Wilmington Trust Company as guarantee trustee or
under this Agreement for any reason whatsoever. This Agreement is
continuing, irrevocable, unconditional and absolute.
Section 1.04. WAIVER OF NOTICE. ALH hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and ALH hereby waives presentment, demand for payment, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
<PAGE>
Section 1.05. NO IMPAIRMENT. The obligations, covenants, agreements
and duties of ALH under this Agreement shall in no way be affected or impaired
by reason of the happening from time to time of any of the following:
(i) the extension of time for the payment by the Trust of all or
any portion of the Obligations or for the performance of any
other obligation under, arising out of, or in connection with,
the Obligations;
(ii) any failure, omission, delay or lack of diligence on the part
of the Beneficiaries to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Beneficiaries with
respect to the Obligations or any action on the part of the
Trust granting indulgence or extension of any kind; or
(iii) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Trust or any of the assets
of the Trust (other than the liquidation of the Trust in
accordance with the terms thereof).
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, ALH with respect to the happening of any of the foregoing.
Section 1.06. ENFORCEMENT. A Beneficiary may enforce this Agreement
directly against ALH and ALH waives any right or remedy to require that any
action be brought against the Trust or any other person or entity before
proceeding against ALH.
Section 1.07. SUBROGATION. ALH shall be subrogated to all (if any)
rights of the Trust in respect of any amounts paid to the Beneficiaries by ALH
under this Agreement; provided, however, that ALH shall not (except to the
extent required by mandatory provisions of law) be entitled to enforce or
exercise any rights which it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Agreement, if, at the time of any such payment under this Agreement, if at the
time of any such payment, any amounts are due and unpaid under this Agreement.
ARTICLE II
Section 2.01. ASSIGNMENT. This Agreement may not be assigned by
either party hereto without the consent of the other, and any purported
assignment without such consent shall be void.
Section 2.02. BINDING EFFECT. All guarantees and agreements
contained in this Agreement shall bind the successors, assigns, receivers,
trustees and representatives of ALH and shall inure to the benefit of the
Beneficiaries.
Section 2.03. AMENDMENT. So long as there remains any Beneficiary or
any Capital Securities are outstanding, this Agreement shall not be modified
or amended in any manner adverse to such Beneficiary or to the holders of the
Capital Securities without the consent of such Beneficiary or the holders of
the Capital Securities, as the case may be.
Section 2.04. NOTICES. Any notice, request or other communication
required or permitted to be given hereunder shall be given in writing by
delivering the same against receipt therefor by facsimile transmission
(confirmed by mail) or by registered or certified mail, addressed as follows
(and if so given, shall be deemed given when mailed):
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<PAGE>
AmerUs Capital I
c/o Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Facsimile No.: 302-651-8882
Attention: Corporate Trust Administration
AmerUs Life Holdings, Inc.
418 Sixth Avenue
Des Moines, Iowa 50309-2407
Facsimile No.: (515) 283-3286
Attention: Executive Vice President
and Chief Financial Officer
(with a copy to the attention of the
Secretary)
Facsimile No.: (515) 283-3402)
Section 2.05 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REGARD TO ITS CONFLICT OF LAWS PRINCIPLES).
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned such terms in the Trust Agreement.
THIS AGREEMENT is executed as of the day and year first above written.
AMERUS LIFE HOLDINGS, INC.
By:
--------------------------------------
Name: Michael E. Sproule
Title: Executive Vice President
and Chief Financial Officer
AMERUS CAPITAL I
By:
--------------------------------------
Name: Michael E. Sproule
Administrative Trustee
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<PAGE>
[Exhibit 4.4]
GUARANTEE AGREEMENT
Between
AmerUs Life Holdings, Inc.
(as Guarantor)
and
Wilmington Trust Company
(as Trustee)
dated as of
, 1997
<PAGE>
CROSS-REFERENCE TABLE*
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
- ------------------- ----------
310(a) . . . . . . . . . . . . . . . . . . . . . . . . . 4.01(a)
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . 4.01(c), 2.08
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(b)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(b)
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(b)
313 . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . 1.01, 2.05, 3.02
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . 2.01, 3.02
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . 3.01(d)
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.07
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . 3.01
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . 3.01(d)
316(a) . . . . . . . . . . . . . . . . . . . . . . . . . 5.04(a), 2.06
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . 5.03
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.01(b)
318(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.01
318(c) . . . . . . . . . . . . . . . . . . . . . . . . . 2.01(a)
- ---------------
* This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01.Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01.Trust Indenture Act; Application. . . . . . . . . . . . . . . . 4
SECTION 2.02.Lists of Holders. . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.03.Reports by the Guarantee Trustee. . . . . . . . . . . . . . . . 5
SECTION 2.04.Periodic Reports to Guarantee Trustee . . . . . . . . . . . . . 5
SECTION 2.05.Evidence of Compliance with Conditions Precedent. . . . . . . . 5
SECTION 2.06.Events of Default; Waiver . . . . . . . . . . . . . . . . . . . 5
SECTION 2.07.Event of Default; Notice. . . . . . . . . . . . . . . . . . . . 5
SECTION 2.08.Conflicting Interests . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE III
POWERS, DUTIES AND RIGHTS
OF GUARANTEE TRUSTEE
SECTION 3.01.Powers and Duties of the Guarantee Trustee. . . . . . . . . . . 6
SECTION 3.02.Certain Rights of Guarantee Trustee . . . . . . . . . . . . . . 7
SECTION 3.03.Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.01.Guarantee Trustee; Eligibility. . . . . . . . . . . . . . . . . 9
SECTION 4.02.Appointment, Removal and Resignation of Guarantee Trustees. . . 9
<PAGE>
ARTICLE V
GUARANTEE
SECTION 5.01.Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . .10
SECTION 5.02.Waiver of Notice and Demand . . . . . . . . . . . . . . . . . .10
SECTION 5.03.Obligations Not Affected. . . . . . . . . . . . . . . . . . . .10
SECTION 5.04.Rights of Holders . . . . . . . . . . . . . . . . . . . . . . .11
SECTION 5.05.Guarantee of Payment. . . . . . . . . . . . . . . . . . . . . .11
SECTION 5.06.Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . .11
SECTION 5.07.Independent Obligations . . . . . . . . . . . . . . . . . . . .12
ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 6.01.Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . .12
SECTION 6.02.Subordination . . . . . . . . . . . . . . . . . . . . . . . . .12
SECTION 6.03.Pari Passu Guarantees . . . . . . . . . . . . . . . . . . . . .12
ARTICLE VII
TERMINATION
SECTION 7.01.Termination . . . . . . . . . . . . . . . . . . . . . . . . . .12
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Successors and Assigns . . . . . . . . . . . . . . . . . . . .13
SECTION 8.02. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . .13
SECTION 8.03. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . .13
SECTION 8.04. Benefit. . . . . . . . . . . . . . . . . . . . . . . . . . . .14
SECTION 8.05. Interpretation . . . . . . . . . . . . . . . . . . . . . . . .14
SECTION 8.06. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . .15
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of , 1997, is executed and
delivered by AmerUs Life Holdings, Inc., an Iowa corporation (the
"Guarantor"), and Wilmington Trust Company, a Delaware banking corporation,
as trustee (the "Guarantee Trustee"), for the benefit of the Holders (as
defined herein) from time to time of the Capital Securities (as defined herein)
of AmerUs Capital I, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the "Trust
Agreement"), dated as of , 1997 among the Trustees of the Issuer
named therein, the Guarantor, as Depositor, and the holders, from time to
time, of undivided beneficial interests in the assets of the Trust, the
Issuer is issuing up to $86,250,000 aggregate liquidation amount of its %
Capital Securities, Series A (liquidation amount $1,000 per capital security)
(the "Capital Securities" and, together with the Common Securities, the
"Trust Securities") and up to $2,588,000 aggregate liquidation amount of its
Common Securities, each representing ownership interests in the assets of the
Issuer and having the terms set forth in the Trust Agreement;
WHEREAS, the Trust Securities will be issued by the Issuer and the
proceeds thereof will be used to purchase the Debentures (as defined in the
Trust Agreement) of the Guarantor which will be deposited with Wilmington Trust
Company, as Property Trustee under the Trust Agreement, as trust assets; and
WHEREAS, as incentive for the Holders to purchase Capital Securities
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth herein, to pay to the Holders the Guarantee Payments (as defined
herein) and to make certain other payments on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Capital Securities, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this Guarantee
Agreement for the benefit of the Holders from time to time of the Capital
Securities.
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. As used in this Guarantee Agreement, the
terms set forth below shall, unless the context otherwise requires, have the
following meanings. Capitalized or otherwise defined terms used but not
otherwise defined herein shall have the meanings assigned to such terms in the
Trust Agreement as in effect on the date hereof unless otherwise indicated.
<PAGE>
"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, PROVIDED, HOWEVER that an Affiliate of the
Guarantor shall not be deemed to include the Issuer. 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.
"Capital Securities" has the meaning specified in the recitals to
this Guarantee Agreement.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer (liquidation amount $1,000 per
Common Security).
"Debt" means, with respect to any Person, whether recourse is to all
or a portion of the assets of such Person and whether or not contingent, (i)
every obligation of such Person for money borrowed; (ii) every obligation of
such Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (iv) every obligation of such Person 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); (v) every capital lease obligation of such Person; and (vi) every
obligation of the type referred to in clauses (i) through (v) of another Person
and all dividends of another Person the payment of which, in either case, such
Person has guaranteed or is responsible or liable for, directly or indirectly,
as obligor or otherwise.
"Event of Default" shall mean (i) a default by the Guarantor on any
of its payment obligations under this Guarantee Agreement or (ii) a default by
the Guarantor in any other obligation hereunder that remains unremedied for 30
days.
"Guarantee" means this Guarantee Agreement, dated as of ,
1997, between AmerUs Life Holdings, Inc. and the Guarantee Trustee.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Capital Securities,
to the extent not paid or made by or on behalf of the Issuer: (i) any
accumulated and unpaid Distributions (as defined in the Trust Agreement)
required to be paid on the Capital Securities, to the extent the Issuer shall
have funds available therefor at such time, (ii) the Redemption Price (as
defined in the Trust Agreement) with respect to the Capital Securities called
for redemption by the Issuer to the extent the Issuer shall have funds
available therefor at such time, and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Issuer, unless Debentures are
distributed to the Holders, the lesser of (a) the Liquidation Distribution
(as defined in the Trust Agreement) to the extent the Issuer shall have funds
available therefor at such time, and (b) the amount of assets of the Issuer
remaining available for distribution to Holders, after satisfaction of
liabilities to creditors of the Issuer as required by applicable law, in
liquidation of the Issuer.
"Guarantee Trustee" means Wilmington Trust Company, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee Agreement and thereafter means each such
Successor Guarantee Trustee.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer, of any Capital Securities; provided, however, that in
determining whether the holders of the requisite
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<PAGE>
percentage of Capital Securities have given any request, notice, consent or
waiver hereunder, "Holder" shall not include the Guarantor, the Guarantee
Trustee or any Affiliate of the Guarantor or the Guarantee Trustee.
"Indenture" means the Junior Subordinated Indenture dated as
of , 1997, among the Guarantor and Wilmington Trust Company, as
trustee.
"Majority in liquidation amount of the Capital Securities" means,
except as provided by the Trust Indenture Act, Capital Securities representing
more than 50% of the liquidation amount of all then outstanding Capital
Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman of the Board, Vice Chairman of the Board,
Chief Executive Officer, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
such Person, and delivered to the Guarantee Trustee. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Guarantee Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee,
any Vice President, any Assistant Vice President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer, any financial services
officer or any other officer of the Corporate Trust Administration Department
of the Guarantee Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of that officer's knowledge of and
familiarity with the particular subject.
"Senior Debt" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Guarantor whether
or not such claim for post-petition interest is allowed in such proceeding), on
Debt, whether incurred on or prior to the date of this Guarantee or thereafter
incurred, unless, in the instrument creating or evidencing the same or pursuant
to which the same is outstanding, it is provided that such
-3-
<PAGE>
obligations are not superior in right of payment to the Guarantee or to other
Debt which is pari passu with, or subordinated to, the Guarantee; provided,
however, that Senior Debt shall not be deemed to include (a) any Debt of the
Guarantor which, when incurred and without respect to any election under
Section 1111(b) of the Bankruptcy Code, was without recourse to the Guarantor,
(b) any Debt of the Guarantor to any of its Subsidiaries (as defined in the
Indenture), (c) Debt to any employee of the Guarantor, (d) trade accounts
payable of the Guarantor, (e) accrued liabilities arising in the ordinary
course of business of the Guarantor, (f) the Debentures and (g) the Guarantee.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. TRUST INDENTURE ACT; APPLICATION.
(a) This Guarantee Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this Guarantee
Agreement and shall, to the extent applicable, be governed by such
provisions.
(b) If and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by Section
310 to 317, inclusive, of the Trust Indenture Act through operation of
Section 318(c) thereof, such imposed duties shall control. If any
provision of this Guarantee Agreement modifies or excludes any provision
of the Trust Indenture Act which may be so modified or excluded, the latter
provision shall be deemed to apply to this Guarantee Agreement as so
modified or excluded, as the case may be.
SECTION 2.02. LISTS OF HOLDERS.
(a) The Guarantor shall furnish or cause to be furnished to the
Guarantee Trustee (a) semi-annually, not later than February 15 and August
15 in each year, a list, in such form as the Guarantee Trustee may
reasonably require, of the names and addresses of the Holders of the
Capital Securities ("List of Holders") as of a date not more than 15 days
prior to the delivery thereof, and (b) at such other times as the Guarantee
Trustee may request in writing, within 30 days after the receipt by the
Guarantor of any such request, a List of Holders as of a date not more than
15 days prior to the time such list is furnished, in each case to the
extent such information is in the possession or control of the Guarantor
and has not otherwise been received by the Guarantee Trustee in its
capacity as such. The Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under
Sections 311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
-4-
<PAGE>
SECTION 2.03. REPORTS BY THE GUARANTEE TRUSTEE. Not later than July
15 of each year, commencing July 15, 1997, the Guarantee Trustee shall provide
to the Holders such reports as are required by Section 313 of the Trust
Indenture Act, if any, in the form and in the manner provided by Section 313 of
the Trust Indenture Act. The Guarantee Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.04. PERIODIC REPORTS TO GUARANTEE TRUSTEE. The Guarantor
shall provide to the Guarantee Trustee, the Securities and Exchange Commission
and the Holders such documents, reports and information as required by Section
314 (if any) and the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act.
SECTION 2.05. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. The
Guarantor shall provide to the Guarantee Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Guarantee Agreement
that relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) may be given in the form of an Officers'
Certificate.
SECTION 2.06. EVENTS OF DEFAULT; WAIVER. The Holders of a Majority
in liquidation amount of the Capital Securities may, by vote, on behalf of the
Holders of all of the Capital Securities, waive any past default or Event of
Default and its consequences. Upon such waiver, any such default or Event of
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this Guarantee Agreement,
but no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon.
SECTION 2.07. EVENT OF DEFAULT; NOTICE.
(a) The Guarantee Trustee shall, within 90 days after the occurrence
of an Event of Default, transmit by mail, first class postage prepaid, to
the Holders of the Capital Securities, notices of all Events of Default
known to the Guarantee Trustee, unless such Event of Default has been
cured before the giving of such notice, provided that, except in the case
of a default in the payment of a Guarantee Payment, the Guarantee 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 Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Capital Securities.
(b) The Guarantee Trustee shall not be deemed to have knowledge of
any Event of Default unless the Guarantee Trustee shall have received
written notice, or a Responsible Officer charged with the administration of
this Guarantee Agreement shall have obtained actual knowledge, of such Event
of Default.
SECTION 2.08. CONFLICTING INTERESTS. The Trust Agreement and the
Indenture shall be deemed to be specifically described in this Guarantee
Agreement for the purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
-5-
<PAGE>
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
SECTION 3.01. POWERS AND DUTIES OF THE GUARANTEE TRUSTEE.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee
for the benefit of the Holders of the Capital Securities, and the
Guarantee Trustee shall not transfer this Guarantee Agreement to any Person
except a Holder of Capital Securities exercising his or her rights
pursuant to Section 5.04(iv) or to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee. The right, title and interest of the
Guarantee Trustee shall automatically vest in any Successor Guarantee
Trustee, upon acceptance by such Successor Guarantee Trustee of
its appointment hereunder, and such vesting and cessation of title shall be
effective whether or not conveyancing documents have been executed and
delivered pursuant to the appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the
Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of
the Holders of the Capital Securities.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically
set forth in this Guarantee Agreement, and no implied covenants shall be
read into this Guarantee Agreement against the Guarantee Trustee. In case
an Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.06), the Guarantee Trustee shall exercise such of the
rights and powers vested in it by this Guarantee Agreement, and use the
same degree of care and skill in its exercise thereof, as a prudent
individual would exercise or use under the circumstances in the conduct of
his or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except
that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Guarantee Trustee
shall be determined solely by the express provisions of this
Guarantee Agreement (including pursuant to Section 2.01), and
the Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Guarantee Agreement; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively rely,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Guarantee Trustee and conforming to the
requirements of this
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<PAGE>
Guarantee Agreement; but in the case of any such certificates or
opinions that by any provision hereof or of the Trust Indenture
Act are specifically required to be furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was
negligent in ascertaining the pertinent facts upon which such judgment
was made;
(iii) the Guarantee 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 not less than a
Majority in liquidation amount of the Capital Securities relating to
the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee Agreement;
and
(iv) no provision of this Guarantee Agreement shall require the
Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers, if the Guarantee
Trustee shall have reasonable grounds for believing that the repayment
of such funds or liability is not reasonably assured to it under the
terms of this Guarantee Agreement or adequate indemnity against such
risk or liability is not reasonably assured to it.
SECTION 3.02. CERTAIN RIGHTS OF GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.01:
(i) The Guarantee Trustee may rely and shall be fully protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document reasonably believed by it to be genuine and
to have been signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an Officers'
Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a matter
be proved or established before taking, suffering or omitting any
action hereunder, the Guarantee Trustee (unless other evidence is
herein specifically prescribed) may, in the absence of bad faith on
its part, request and rely upon an Officers' Certificate which, upon
receipt of such request from the Guarantee Trustee, shall be promptly
delivered by the Guarantor.
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(iv) The Guarantee Trustee may (at the expense of the Guarantor)
consult with legal counsel, and the written advice or opinion of such
legal counsel with respect to legal matters 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 accordance with such
advice or opinion. Such legal counsel may be legal counsel to the
Guarantor or any of its Affiliates and may be one of its employees.
The Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Guarantee Agreement
from any court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of any Holder, unless such
Holder shall have provided to the Guarantee Trustee such adequate
security and indemnity as would satisfy a reasonable person in the
position of the Guarantee Trustee, against the costs, expenses
(including attorneys' fees and expenses) and liabilities that might be
incurred by it in complying with such request or direction, including
such reasonable advances as may be requested by the Guarantee Trustee;
provided that, nothing contained in this Section 3.02(a)(v) shall be
taken to relieve the Guarantee Trustee, upon the occurrence of an
Event of Default, of its obligation to exercise the rights and powers
vested in it by this Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit.
(vii) The Guarantee 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 Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care by it hereunder.
(viii) Whenever in the administration of this Guarantee
Agreement the Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking
any other action hereunder, the Guarantee Trustee (A) may request
instructions from the Holders of the Capital Securities,
(B) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (C)
shall be protected in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to
impose any duty or obligation on the Guarantee Trustee to perform any act
or acts or exercise any right, power, duty or obligation conferred or
imposed on it in any jurisdiction in which it shall be illegal, or in which
the Guarantee Trustee shall be unqualified or incompetent in accordance
with applicable law, to perform any such act or acts or to exercise any
such right, power, duty or obligation. No permissive power or authority
available to the Guarantee Trustee shall be construed to be a duty to act
in accordance with such power and authority.
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<PAGE>
SECTION 3.03. INDEMNITY. The Guarantor agrees to indemnify the
Guarantee Trustee for, and to hold it harmless against, any loss, damage,
claims, liability, penalty or expense incurred without negligence or bad faith
on the part of the Guarantee Trustee, arising out of or in connection with the
acceptance or administration of this Guarantee Agreement, including the costs
and expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder. The
Guarantee Trustee will not claim or exact any lien or charge on any Guarantee
Payments as a result of any amount due to it under this Guarantee Agreement.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.01. GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall at all times be a Guarantee Trustee which shall
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture
Act to act as such and has a combined capital and surplus of at least
50 million U.S. dollars ($50,000,000), and shall be a corporation
meeting the requirements of Section 310(a) of the Trust Indenture Act.
If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of a supervising or examining
authority, then, for the purposes of this Section 4.01(a)(ii) and to
the extent permitted by the Trust Indenture Act, the combined capital
and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible
to so act under Section 4.01(a), the Guarantee Trustee shall immediately
resign in the manner and with the effect set out in Section 4.02(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act,
the Guarantee Trustee and Guarantor shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
SECTION 4.02. APPOINTMENT, REMOVAL AND RESIGNATION OF GUARANTEE
TRUSTEES.
(a) Subject to Section 4.02(b), the Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Guarantee Trustee and
delivered to the Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office until
a Successor Guarantee Trustee shall have been appointed or until its
removal or resignation. The Guarantee
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Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Guarantee Trustee
and delivered to the Guarantor, which resignation shall not take effect
until a Successor Guarantee Trustee has been appointed and has accepted
such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning
Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.02 within 30 days after
delivery to the Guarantor of an instrument of resignation, the resigning
Guarantee Trustee may petition, at the expense of the Guarantor, any court
of competent jurisdiction for appointment of a Successor Guarantee Trustee.
Such court may thereupon, after prescribing such notice, if any, as it may
deem proper, appoint a Successor Guarantee Trustee.
ARTICLE V
GUARANTEE
SECTION 5.01. GUARANTEE. The Guarantor irrevocably and
unconditionally agrees to pay in full to the Holders the Guarantee Payments
(without duplication of amounts theretofore paid by or on behalf of the
Issuer), as and when due, regardless of any defense (other than the defense of
payment), right of set-off or counterclaim which the Issuer may have or
assert. The Guarantor's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the Guarantor to the
Holders or by causing the Issuer to pay such amounts to the Holders.
SECTION 5.02. WAIVER OF NOTICE AND DEMAND. The Guarantor hereby
waives notice of acceptance of the Guarantee Agreement and of any liability to
which it applies or may apply, presentment, demand for payment, any right to
require a proceeding first against the Guarantee Trustee, the Issuer or any
other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
SECTION 5.03. OBLIGATIONS NOT AFFECTED. The obligations, covenants,
agreements and duties of the Guarantor under this Guarantee Agreement shall in
no way be affected or impaired by reason of the happening from time to time of
any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Capital Securities
to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions (other than an extension of time for payment
of Distributions that results from the extension of any interest payment
period on the Debentures as so provided in the Indenture), Redemption
Price, Liquidation Distribution or any other sums payable under the terms
of the Capital Securities or the extension of time for the performance of
any other obligation under, arising out of, or in connection with, the
Capital Securities;
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(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Capital
Securities or any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Issuer
or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Capital
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor (other
than payment of the underlying obligation), it being the intent of this
Section 5.03 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain consent
of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.04. RIGHTS OF HOLDERS. The Guarantor expressly
acknowledges that: (i) this Guarantee Agreement will be deposited with the
Guarantee Trustee to be held for the benefit of the Holders; (ii) the Guarantee
Trustee has the right to enforce this Guarantee Agreement on behalf of the
Holders; (iii) the Holders of a Majority in liquidation amount of the Capital
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee in respect of this
Guarantee Agreement or exercising any trust or power conferred upon the
Guarantee Trustee under this Guarantee Agreement; and (iv) any Holder of
Capital Securities may, to the extent permissible under applicable law,
institute a legal proceeding directly against the Guarantor to enforce its
rights under this Guarantee Agreement, without first instituting a legal
proceeding against the Guarantee Trustee, the Issuer or any other Person.
SECTION 5.05. GUARANTEE OF PAYMENT. This Guarantee Agreement
creates a guarantee of payment and not a guarantee of collection. This
Guarantee Agreement will not be discharged except by payment of the Guarantee
Payments in full (without duplication of amounts theretofore paid by the
Issuer) or upon distribution of Debentures to Holders as provided in the Trust
Agreement.
SECTION 5.06. SUBROGATION. The Guarantor shall be subrogated to all
(if any) rights of the Holders against the Issuer in respect of any amounts paid
to the Holders by the Guarantor under this Guarantee Agreement and shall have
the right to waive payment by the Issuer pursuant to Section 5.01; PROVIDED,
HOWEVER, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any rights which
it may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Guarantee Agreement,
if, at the time of any such payment, any amounts are due and unpaid under this
Guarantee Agreement. If any amount shall be paid to the Guarantor in violation
of the preceding sentence,
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<PAGE>
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
SECTION 5.07. INDEPENDENT OBLIGATIONS. The Guarantor acknowledges
that its obligations hereunder are independent of the obligations of the
Issuer with respect to the Capital Securities and that the Guarantor shall be
liable as principal and as debtor hereunder to make Guarantee Payments
pursuant to the terms of this Guarantee Agreement notwithstanding the
occurrence of any event referred to in subsections (a) through (g),
inclusive, of Section 5.03 hereof.
ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 6.01. COVENANTS. So long as any Capital Securities remain
outstanding, the Guarantor shall not, and shall cause its Subsidiaries (as
defined in the Indenture) not to, (i) declare or pay any dividends or
distributions on (other than dividends or distributions in common stock of the
Guarantor), or redeem, purchase, acquire or make a liquidation payment with
respect to, any of the Guarantor's outstanding capital stock or (ii) make any
payment of principal, interest or premium, if any, on or repay, repurchase or
redeem any debt securities that rank PARI PASSU with or junior to the Debentures
or make any guarantee payments with respect to the foregoing, if at such time
(i) the Guarantor shall be in default with respect to its Guarantee Payments
hereunder, (ii) there shall have occurred and be continuing any Event of Default
under the Indenture or (iii) the Guarantor shall have given notice of its
selection of an Extension Period (as defined in the Indenture) and such period,
or any extension thereof, is continuing.
SECTION 6.02. SUBORDINATION. The obligations of the Guarantor under
this Guarantee Agreement will constitute unsecured obligations of the
Guarantor and will rank subordinate and junior in right of payment to all
Senior Debt of the Guarantor to the extent and in the manner set forth in the
Indenture with respect to the Debentures, and the provisions of Article Eleven
of the Indenture will apply, MUTATIS MUTANDIS, to the obligations of the
Guarantor hereunder. The obligations of the Guarantor hereunder do not
constitute Senior Debt (as defined in the Indenture) of the Guarantor.
SECTION 6.03. PARI PASSU GUARANTEES. The obligations of the
Guarantor under this Guarantee Agreement shall rank pari passu with the
obligations of the Guarantor under (i) any similar guarantee agreements issued
by the Guarantor on behalf of the holders of preferred or capital securities
issued by a business trust or similar entity whose common securities are
owned, directly or indirectly, by the Guarantor, (ii) the Indenture and the
Debentures issued thereunder; (iii) the Expense Agreement (as defined in the
Trust Agreement) and any similar expense agreements entered into by the
Guarantor in connection with the offering of Capital Securities by the Trust,
and (iv) any other security, guarantee or other agreement or obligation that
is expressly stated to rank PARI PASSU with the obligations of the Guarantor
under this Guarantee Agreement or with any obligation that ranks PARI PASSU
with the obligations of the Guanrantor under this Guarantee Agreement.
ARTICLE VII
TERMINATION
SECTION 7.01. TERMINATION. This Guarantee Agreement shall
terminate and be of no further force and effect upon (i) full payment of the
Redemption Price of all Capital Securities, (ii) the distribution of
Debentures to Holders of Capital Securities in exchange for all of the
Capital Securities or (iii) full payment of the amounts payable in
accordance with the Trust Agreement upon liquidation of the Issuer.
Notwithstanding the foregoing, this Guarantee Agreement will continue to be
effective or will be reinstated, as the case may be, if at any time any
Holder must restore payment of any sums paid with respect to Capital
Securities or this Guarantee Agreement. Guarantor will indemnify each Holder
and hold it harmless from and against any loss it may suffer in such
circumstance.
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. SUCCESSORS AND ASSIGNS. All guarantees and agreements
contained in this Guarantee Agreement shall bind the successors, assigns,
receivers, trustees and representatives of the Guarantor and shall inure to
the benefit of the Holders of the Capital Securities then outstanding. Except
in connection with a consolidation, merger or sale involving the Guarantor or
a conveyance, transfer or lease of the Guarantor's properties that is
permitted under Article Eight of the Indenture and pursuant to which the
successor or assignee agrees in writing to perform the Guarantor's obligations
hereunder, the Guarantor shall not assign its obligations hereunder, and any
purported assignment other than in accordance with this provision shall be void.
SECTION 8.02. AMENDMENTS. Except with respect to any changes that
do not adversely affect the rights of Holders in any material respect (in
which case no consent of Holders will be required), this Guarantee Agreement
may be amended only with the prior approval of the Holders of not less than a
Majority in liquidation amount of the outstanding Capital Securities. The
provisions of Article VI of the Trust Agreement concerning meetings of Holders
shall apply to the giving of such approval.
SECTION 8.03. NOTICES. Any notice, request or other communication
required or permitted to be given hereunder shall be in writing, duly signed by
the party giving such notice, and delivered, telecopied or mailed by first class
mail as follows:
(a) if given to the Guarantor, to the address or telecopy number set
forth below or such other address as the Guarantor may give notice of to the
Guarantee Trustee:
AmerUs Life Holdings, Inc.
418 Sixth Avenue
Des Moines, Iowa 50309-2407
Facsimile No: (515) 283-3402
Attention: Secretary
(b) if given to the Issuer, at the address or telecopy number set
forth below or such other address as the Issuer may give notice of to the
Guarantee Trustee:
AmerUs Capital I
c/o AmerUs Life Holdings, Inc.
418 Sixth Avenue
Des Moines, Iowa 50309-2407
Facsimile No: (515) 283-3402
Attention: Administrative Trustee
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with copy to:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Facsimile No: (302) 651-8882
Attention: Corporate Trust Administration
(c) if given to the Guarantee Trustee, at the Guarantee Trustee's
address or telecopy number set forth below:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Facsimile No: (302) 651-8882
Attention: Corporate Trust Administration
(d) if given to any Holder of Capital Securities, at the
address set forth on the books and records of the Issuer.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 8.04. BENEFIT. This Guarantee Agreement is solely for the
benefit of the Holders, and is not separately transferable from the Capital
Securities.
SECTION 8.05. INTERPRETATION. In this Guarantee Agreement, unless
the context otherwise requires:
(a) Capitalized terms used in this Guarantee Agreement but not
defined in the preamble hereto have the respective meanings assigned to
them in Section 1.01 unless otherwise indicated;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or
amended from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
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<PAGE>
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Guarantee Agreement unless otherwise defined in this
Guarantee Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa;
and
(g) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
SECTION 8.06. GOVERNING LAW. THIS GUARANTEE AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
This instrument may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
THIS GUARANTEE AGREEMENT is executed as of the day and year first
above written.
AMERUS LIFE HOLDINGS, INC.
By:
-------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY
as Guarantee Trustee
By:
-------------------------------
Name:
Title:
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EXHIBIT 5.3
[LETTERHEAD]
January 21, 1997
AmerUs Life Holdings, Inc.
418 Sixth Avenue
Des Moines, Iowa, 50309-2407
Ladies and Gentlemen:
Reference is made to the Registration Statement (Registration No.
333-113713) on Form S-1 filed on October 8, 1996, by AmerUs Life Holdings, Inc.,
an Iowa corporation (the "Company") and AmerUs Capital I, a Delaware business
trust (the "Trust") with the Securities and Exchange Commission ("SEC") under
the Securities Act of 1933, as amended (the "Securities Act")(such registration
statement, as amended from time to time, being hereinafter referred to as the
"Registration Statement") relating, in part, to the registration of
Junior Subordinated Debentures (the "Debentures") and a Guarantee
with respect to capital securities to be issued by an issuer trust to whom the
Debentures will be issued (the "Guarantee").
I am familiar with the proceedings to date with respect to the
proposed offering and sale of the Debentures and the Guarantee, and have
examined such records, documents and questions of law, and satisfied myself as
to such matters of fact, as I have considered relevant and necessary as a basis
for this opinion.
Based on the foregoing, I am of the opinion that:
1. The Company is duly incorporated and validly existing under the
laws of the State of Iowa.
2. The Debentures are to be issued under an Indenture among the
Company and the Trustee thereunder (hereinafter called the "Indenture"), a form
of which is filed as an exhibit to the Registration Statement. The Indenture
will be a valid instrument legally binding upon the Company and the Debentures
will be duly authorized and issued and will constitute the legal, valid and
binding obligations of the Company subject as to enforcement to bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other similar
laws now or hereafter in effect relating to creditors' rights generally,when (a)
the Registration Statement, as finally amended, shall have become effective
under the Securities Act; (b) the Company's Board of Directors or a duly
authorized committee thereof shall have duly adopted final resolutions
authorizing the Indenture and the issuance, sale and delivery of the Debentures
as contemplated by the Registration
<PAGE>
AmerUs Life Holdings, Inc.
January 21, 1997
Page Two
Statement and the Indenture shall have been duly executed and delivered by the
Company and the Trustee thereunder, acting by their proper officers, and (c) the
Debentures shall have been duly executed by the proper officers of the Company
and authenticated by the Trustee in accordance with the provisions of the
Indenture and duly delivered to the purchasers thereof against payment of the
agreed consideration therefor.
3. The Guarantee is to be issued under a Guarantee Agreement between
the Company and the Trustee thereunder (hereinafter called the "Guarantee
Agreement"), a form of which is filed as an exhibit to the Registration
Statement. The Guarantee Agreement will be a valid instrument legally binding
upon the Company and the Guarantee will be duly authorized and issued and will
constitute the legal, valid and binding obligation of the Company subject as to
enforcement to bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws now or hereafter in effect relating to
creditors' rights generally, when (a) the Registration Statement, as finally
amended, shall have become effective under the Securities Act, (b) the Company's
Board of Directors or a duly authorized committee thereof shall have duly
adopted final resolutions authorizing the Guarantee Agreement and the issuance,
sale and delivery of the Guarantee as contemplated by the Registration Statement
and the Guarantee Agreement shall have been duly executed and delivered by the
Company and the Trustee thereunder, acting by their proper officers and duly
delivered.
I do not find it necessary for the purpose of this opinion to cover,
and accordingly I express no opinion as to, the application of the securities or
blue sky laws of the various states to the sale of the Debentures or the
Guarantee.
This opinion is limited to the General Corporation Law of the State of
Iowa and the Securities Act.
I hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to all references to this opinion included in or made
a part of the Registration Statement.
Very truly yours,
/s/ James A. Smallenberger
<PAGE>
EXHIBIT 5.4
[LETTERHEAD OF RICHARDS, LAYTON & FINGER]
January 21, 1997
AmerUs Capital I
c/o AmerUs Life Holdings, Inc.
418 Sixth Avenue
Des Moines, Iowa, 50309-2407
RE: AMERUS CAPITAL I
Ladies and Gentlemen:
We have acted as special Delaware counsel for AmerUs Life Holdings,
Inc., an Iowa corporation ("AmerUs") and AmerUs Capital I, a Delaware
business trust (the "Trust"), in connection with the matters set forth herein.
At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated October 4,
1996 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on October 4, 1996;
(b) The Trust Agreement, dated as of October 4, 1996, between
AmerUs and Wilmington Trust Company, a Delaware banking corporation, as
trustee;
(c) The Registration Statement (Registration No. 333-113713) on
Form S-1 filed on October 8, 1996, with the Securities and Exchange
Commission ("SEC") under the Securities Act of 1933, as amended (the
"Securities Act")(such registration statement, as amended from time to time,
being hereinafter referred to as the "Registration Statement"), including a
preliminary prospectus (the "Prospectus"), relating, in part, to the
registration of the Capital Securities, Series A of the Trust, representing
undivided beneficial interests in the assets of the Trust (each, a "Capital
Security" and collectively, the "Capital Securities");
(d) A form of Amended and Restated Trust Agreement, to be entered
into among AmerUs, the trustees of the Trust named therein, and the holders,
from time to time, of undivided beneficial interests in the Trust (including
the Exhibits thereto) (the "Trust Agreement"), attached as an exhibit to the
Registration Statement; and
<PAGE>
AmerUs Capital I
c/o AmerUs Life Holdings, Inc.
January 21, 1997
Page 2
(e) A Certificate of Good Standing for the Trust, dated the date
hereof, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents
other than the documents listed in paragraphs (a) through (e) above. In
particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that
bears upon or is inconsistent with the opinions stated herein. We have
conducted no independent factual investigation of our own but rather have
relied solely upon the foregoing documents, the statements and information
set forth therein and the additional matters recited or assumed herein, all
of which we have assumed to be true, complete and accurate in all material
respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and that the Trust Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the payment by each Person to whom
a Capital Security is to be issued by the Trust (collectively, the "Capital
Security Holders") for the Capital Security acquired by it, in accordance with
the Trust Agreement and the Registration Statement, and (vii) that the Capital
Securities are issued and
<PAGE>
AmerUs Capital I
c/o AmerUs Life Holdings, Inc.
January 21, 1997
Page 3
sold to the Capital Security Holders in accordance with the Trust Agreement
and the Registration Statement. We have not participated in the preparation of
the Registration Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, 12 Del. C.
Section 3801, et seq.
2. The Capital Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Capital Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Capital Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading
"Validity of Securities" in the Prospectus. In giving the foregoing consents,
we do not thereby admit that we come within the category of persons whose
consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Securities and Exchange
Commission thereunder. Except as stated above, without our prior written
consent, this opinion may not be furnished or quoted to, or relied upon by,
any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger
<PAGE>
Exhibit 8.2
[LETTERHEAD OF SIDLEY & AUSTIN]
January 21, 1997
AmerUs Life Holdings, Inc.
AmerUs Capital I
418 Sixth Avenue
Des Moines, Iowa 50306-2499
Ladies and Gentlemen:
We have acted as special counsel to AmerUs Life Holdings, Inc., an
Iowa corporation ("ALH"), and AmerUs Capital I, a Delaware statutory business
trust (the "Trust"), in connection with the proposed offering by the Trust of
its Capital Securities, Series A (the "Capital Securities") as described in
the Registration Statement on Form S-1 (the "Registration Statement"), filed
by ALH and the Trust with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended. The Registration Statement includes
the Prospectus (the "Prospectus") of ALH and the Trust. Capitalized terms
not defined herein have the meanings specified in the Prospectus.
In rendering the opinions expressed below, we have examined the
Prospectus and such other documents as we have deemed relevant and necessary,
including, without limitation, the Form of Amended and Restated Trust
Agreement, the Form of Indenture and the Form of Guarantee, attached as
Exhibits to the Registration Statement. Such opinions are conditioned, among
other things, upon the accuracy and completeness of the facts, information
and representations contained in the Prospectus as of the date hereof and the
continuing accuracy and completeness thereof as of the date of the issuance
of the Capital Securities. We have assumed that the transactions
contemplated by the Prospectus and such other documents will occur as
provided therein and that there will be no material change to the Prospectus
or any of such other documents between the date hereof and the date of the
issuance of the Capital Securities.
We have assumed the authenticity of all documents submitted to us as
originals, the genuineness of all signatures, the legal capacity of all natural
persons and the conformity with original documents of all copies submitted to us
for our examination. We have also
<PAGE>
AmerUS Life Holdings, Inc.
AmerUS Capital I
January 21, 1997
Page 2
assumed that all obligations imposed by such documents on the parties thereto
are or will be enforceable, and have been or will be performed or satisfied
in accordance with their terms. In addition, we have relied, with your
consent, on the opinion of Richards, Layton & Finger with respect to the
validity of the Capital Securities and the formation of the Trust and have
assumed that Richards, Layton & Finger will deliver an opinion at the closing
with respect to the enforceability of the Capital Securities.
In rendering the opinions expressed below, we have considered the
applicable provisions of the Internal Revenue Code of 1986, as amended (the
"Code"), Regulations promulgated thereunder by the United States Treasury
Department (the "Regulations"), pertinent judicial authorities, rulings of the
Internal Revenue Service and such other authorities as we have considered
relevant. It should be noted that the Code, the Regulations and such judicial
decisions, administrative interpretations and other authorities are subject to
change at any time and, in some circumstances, with retroactive effect; and any
such change could affect the opinions stated herein.
Based upon and subject to the foregoing, we are of the opinion that:
(1) Under current law, the Junior Subordinated Debentures held by the
Trust will be classified for United States federal income tax purposes as
indebtedness of ALH;
(2) Under current law, the Trust will be classified for United States
federal income tax purposes as a grantor trust and not as an association
taxable as a corporation; and
(3) The discussion set forth in the Prospectus under the caption
"UNITED STATES FEDERAL INCOME TAX CONSEQUENCES" is a fair and accurate
summary of the matters addressed therein, based upon current law and the
assumptions stated or referred to therein.
We assume no obligation to update or supplement this letter to reflect
any facts or circumstances which may hereafter come to our attention with
respect to the opinions expressed above, including any changes in applicable law
which may hereafter occur.
We hereby consent to the filing of this letter as an Exhibit to the
Registration Statement and to all references to our Firm included in or made a
part of the Registration Statement.
Very truly yours,
/s/ Sidley & Austin
